Alabama Attorney General Opinion 1979-0133

AtT6RNE Y GENERAL STATE OF ALABAMA • MONTGOMERY. ALABA rig- fa3 \\Q -AAP) MAR 27 1019 Honorable John R. Phillips Attorney at Law 810 Commercial National Bank Building Anniston, Alabama 36201 CHARLES A. CRADDICK ATTORNEY GENERAL Conflicts of Interest - Municipalities - City Council 1. City councilman and mayor cannot vote in election of member to city board of education because of financial interest. 2. Member of city board of education may continue to serve a reasonable time after expiration of his term until successor is appointed. Dear Mr. Phillips: Reference is made to your request for an opinion from the Attorney General as to whether the mayor and a city councilman may cast a vote in the election of a member of the city board of education in accordance with Code of Alabama 1975, Section 16-11-3. In your letter you stated the following facts: The mayor is employed by the Oxford City Board of Education as Transportation Supervisor and is paid solely out of funds received by the Board from the State Department of Education. None of the funds appropriated by the Council are used in payment for the mayor's services. The wife of one of the councilmen for the City of Oxford is employed by the Oxford City'Board of Educations a kindergarten aide, and is paid out of the funds of the Oxford City Board of Education. The councilman is also employed Hon. John R. Phillips Page Two VAR 27 1979 by a dairy corporation which has the contract for furnishing milk to the school lunchrooms. This councilman also helped to negotiate this contract with the Oxford City Board of Education. Code of Alabama 1975, Section 11-43-54 states: No councilman shall be entitled to vote on any question in which he, his employer or employee has a special financial interest at the time of voting or was so interested at the time of his election. For violating this section or section 11-43-53, a councilman may be removed. It is the opinion of the Attorney General that Section 11-43-54 would prohibit the mayor and councilman from voting in the election of a member of the city board of education by the city council. Although the mayor is paid with funds ap- propriated by the State Board of Education, he is employed by the City Board of Education and his salary is paid by it although state funds are used. The employer of the council- man and the councilman himself have a definite financial interest at the time of voting because of the milk contract with the schools. You also asked the following question: Is the office of a member of the City Board of Education vacated upon the expiration of hi:. term or does he continue to serve until such time as his successor is appointed and sworn in? The Supreme Court of Alabama has ruled on several occasions that an officer may continue to hold office after his term has expired only for a reasonable time until his successor is elected and qualified. State ex rel Benefield v. Cottle, 254 Ala. 520, 49 So. 2d 224, City Council of Montgomery v. Hughes, 64 Ala. 201. Therefore, a member of the Board of Education can serve a reason- able time until his successor is appointed and sworn in, but the vacancy in his office occurs at the expiration of his term and he serves as a de facto officer. CHARLES A. GRADDICK Attorney General By A F. KNIGHT Assistant Attorney General howearre Honorable John R. Phillips Page Three NM 27 1979 If our office can be of further assistance, pleaie do not hesitate to contact us. Very truly yours, LFK/sg