Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1910, § 1551(165) and former Code Sections 20-2-102 and 20-2-107, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Constitutionality of section was raised but was not decided. See Clark v. Colquitt County Democratic Executive Comm., 158 Ga. 642, 124 S.E. 40 (1924) (decided under former Code 1910, § 1551 (165)).

Section did not violate former Ga. Const. 1877, Art. XI, Sec. III, Para. I, which required uniformity among county governments. Olliff v. Hendrix, 172 Ga. 497, 158 S.E. 11 (1931).

Office of county school superintendent was not abolished by the Constitution of 1945; it was simply changed from a statutory office to a constitutional one. Saxon v. Bell, 201 Ga. 797, 41 S.E.2d 536 (1947).

Office of the county school superintendent is a constitutional office.

- Superintendent is to be elected by the voters of the district, the district being the county of the superintendent's residence, exclusive of any independent school system in existence in the county. Kemp v. Mitchell County Democratic Executive Comm., 216 Ga. 276, 116 S.E.2d 321 (1960).

Provisions of subsection (f) not violated.

- Because the trial court interpreted the parties' agreement to include the procedures set out in O.C.G.A. § 20-2-940, and because the trial court did not rule that the procedures applied as a matter of law to disputes between superintendents and school systems, the trial court did not violate the directive of O.C.G.A. § 20-2-101(f) that the terms and conditions of a superintendent's employment by a school system were governed by the parties' contract. Grady County Bd. of Educ. v. Hickerson, 275 Ga. 580, 571 S.E.2d 391 (2002).

Bond of county school commissioner binding until successor elected and qualified.

- County board of education could not decline to approve a bond on the ground that the commission issued by the Governor to the county school commissioner was expressly from May 7, 1912, to May 7, 1916, when by the former section the term of office of the commissioner (now the superintendent) was extended to January 1, 1917. The bond would bind the securities thereon for any time after the expiration of the four years until the principal's successor was elected and qualified. Jones v. Mattox, 146 Ga. 629, 92 S.E. 202 (1917) (decided under former Code 1910, § 1551 (165)).

Eligibility to hold office of county superintendent is the eligibility to vote at the election. Bower v. Avery, 172 Ga. 272, 158 S.E. 10 (1931).

Municipal resident unqualified for county superintendent unless qualified to vote beyond municipal limits.

- Resident of Eastman is not qualified to hold the office of county school superintendent of Dodge County unless it appears that the resident is a legally qualified voter of some portion of the County of Dodge beyond the territorial limits of the municipality, which has an independent school system. Phillips v. Rozar, 172 Ga. 862, 159 S.E. 245 (1931).

Only qualified voter for officer can hold that office.

- One cannot hold an office unless one is a voter qualified to vote in an election for such office. Phillips v. Rozard, 172 Ga. 862, 159 S.E. 245 (1931).

Legislature could provide that voters of independent system should not vote for county superintendent.

- It was within the competency of the legislature to provide by statute that voters of independent school systems should not vote in the election for county superintendent. Bower v. Avery, 172 Ga. 272, 158 S.E. 10 (1931).

Voters in independent system not qualified in any primary or election.

- Voters in the independent school district were not qualified to vote in any primary or election for county school superintendent, nor could the voters so qualify, or become qualified, by reason of the fact that the voters' names may have appeared on the general list of registered voters. Kemp v. Mitchell County Democratic Executive Comm., 216 Ga. 276, 116 S.E.2d 321 (1960).

When election unauthorized, or statutory requirements not complied with, election void.

- When there is no authority to hold the election, or when statutory requirements pertaining to the holding of an election are not complied with, the election is void, and an injunction is a proper remedy. Kemp v. Mitchell County Democratic Executive Comm., 216 Ga. 276, 116 S.E.2d 321 (1960).

Triable issues of fact existed as to whether the school district intentionally discriminated against the employee's race when the district issued the employee a two-year contract as superintendent of the school district and when the district failed to renew the employee's contract; of all the superintendents appointed by the school district after a change in the law, only the employee, the first African-American superintendent, received a two-year, probationary contract. Dickey v. Crawford County Sch. Dist., F. Supp. 2d (M.D. Ga. Mar. 5, 2013).

Cited in Avery v. Bower, 170 Ga. 202, 152 S.E. 239 (1930); Marshall v. Walker, 183 Ga. 44, 187 S.E. 81 (1936); Guy v. Nelson, 202 Ga. 728, 44 S.E.2d 775 (1947).

County superintendent not required to reside outside of incorporated city or independent school system.

- General Assembly did not see fit to require county school superintendents, at the time of the superintendents' election or during the superintendents' incumbency, to reside outside of an incorporated city or an independent school system. Avery v. Bower, 170 Ga. 202, 152 S.E. 239 (1930).

Statutory prohibition against convicted person holding public office.

- Prohibition against a person convicted of a crime involving moral turpitude from holding public office in this state existed by statutory enactment for many years prior to the adoption of the Constitution of 1877. Parkerson v. Hart, 200 Ga. 660, 38 S.E.2d 397 (1946).

"Moral turpitude" defined.

- "Moral turpitude" is an act of baseness, vileness, or depravity in the private and social duties which a man owes to a fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. Huff v. Anderson, 212 Ga. 32, 90 S.E.2d 329 (1955).

All crimes embraced within the Roman's conception of the "crimen falsi" involve turpitude, but it is not safe to declare that such crimes only involve turpitude. Huff v. Anderson, 212 Ga. 32, 90 S.E.2d 329 (1955).

Fraud, false pretenses, or larceny after trust involve moral turpitude.

- Offenses of obtaining money from another by fraud or false pretenses, or larceny after trust, are crimes malum in se, involving moral turpitude. Huff v. Anderson, 212 Ga. 32, 90 S.E.2d 329 (1955).

Guilty plea.

- Plea of guilty, accepted and entered by the court, is a "conviction" within the meaning of this section. Huff v. Anderson, 212 Ga. 32, 90 S.E.2d 329 (1955).

Sentencing not required for ineligibility to hold office.

- This section, which defines the qualifications of county school superintendents, does not require that one be convicted "and sentenced" before one is ineligible to hold the office by reason of a crime involving moral turpitude. Huff v. Anderson, 212 Ga. 32, 90 S.E.2d 329 (1955).

Suspension of sentence entered on plea of guilty does not relieve the defendant from being convicted of the offense with which the defendant was charged. Huff v. Anderson, 212 Ga. 32, 90 S.E.2d 329 (1955).

Plea of guilty and sentence thereunder foreclosed any investigation of intent, motive, or good faith of the defendant, when the issue was the eligibility of the defendant to hold the office of county superintendent of schools. Huff v. Anderson, 212 Ga. 32, 90 S.E.2d 329 (1955).

Additional qualifications inapplicable to person elected prior to section's passage.

- Any additional qualifications for a superintendent of schools prescribed by this section are not applicable to a person so elected prior to the passage of the act enacting this section. Mattox v. Jones, 141 Ga. 649, 81 S.E. 861 (1914) (decided under former Code 1910, § 1551(167)).

Office of county superintendent vacant when no authorized and qualified person.

- Office of county superintendent of schools is not vacant so long as there is a person authorized and qualified in the manner provided by law substantially discharging the duties of the office. Parkerson v. Hart, 200 Ga. 660, 38 S.E.2d 397 (1946).

When county board suspends superintendent, office becomes vacant, absent appeal.

- County board of education has the right to suspend the county superintendent of schools for the commission of a crime involving moral turpitude, and during the period of suspension, and in the absence of an appeal, the office becomes vacant, and this would be true regardless of the period of the suspension, whether temporary or permanent. Parkerson v. Hart, 200 Ga. 660, 38 S.E.2d 397 (1946).

Ineligibility of suspended superintendent.

- When a vacancy in the office of county superintendent of schools is created by a proper order of the board of education suspending the present holder of the office and an appointment is made to fill the vacancy, and thereafter the suspended official becomes ineligible under the constitution and laws of this state to hold the office, the appointee will retain the office for the remainder of the term of the former ineligible superintendent under the provisions of this section, unless the appointee's right to the office is sooner terminated in some manner provided by law. Parkerson v. Hart, 200 Ga. 660, 38 S.E.2d 397 (1946).

Vacancy occurring from military duty filled until absence or term of office expires.

- Phrase "a vacancy . . . from any cause whatever" in this section should be construed to include a leave of absence for military duty; a vacancy occurring from such an absence should be filled only until the leave of absence expires or the term of office expires, whichever occurs first. 1960-61 Op. Att'y Gen. p. 131.

Residents of independent school district are eligible to be elected or appointed as county superintendent, but are not eligible to vote for county school superintendent. 1945-47 Op. Att'y Gen. p. 148.

Qualified voters residing within limits of a quasi-independent school district are permitted to vote for the county school superintendent. 1945-47 Op. Att'y Gen. p. 148.

It is a question of fact as to whether school system is independent or quasi-independent, which must be determined by the local authorities charged with the responsibility of making such a determination. 1948-49 Op. Att'y Gen. p. 120.

"Quasi-independent" school district is one which, through specific statutory provisions, receives funds through the county school system, but contractual agreements between systems do not make a "quasi-independent" system. 1954-56 Op. Att'y Gen. p. 197.

Statutory election requirements cannot be altered by contract.

- When the county board of education and the independent system contract with each other for the education, transportation, and care of pupils, this does not of itself give the residents of the independent system the right to vote in an election held to select the county school superintendent, nor may such right be given by contract; such a contract does not amount to merger. When election requirements are set out by statute, neither individuals nor groups may alter such legislative intent by contract. 1954-56 Op. Att'y Gen. p. 216.

Contract duration controlled by local constitutional amendment.

- Duration of the contract of the Cobb County school superintendent is to be determined by the local constitutional amendment, in Ga. Laws 1963, pp. 3778, 3786, and continued by Ga. Laws 1986, pp. 4055-56, and not by the 1993 amendment to O.C.G.A. § 20-2-101. 1993 Op. Att'y Gen. No. U93-11.

Age of retirement.

- School superintendents are not required to retire at age 70, but may hold their offices at least until successors are elected. 1985 Op. Att'y Gen. No. 85-58, affirming 1945-47 Op. Att'y Gen. p. 152.

Mandatory retirement provision of O.C.G.A. § 47-3-101 is inapplicable to an elected school superintendent; thus, an elected school superintendent who has attained the age of 70 can run for office and serve if elected. 1985 Op. Att'y Gen. No. 85-58. (The mandatory retirement provision was deleted from § 47-3-101 in 1990.)

Appointment commencing after terms of current board not authorized.

- In the absence of clear legislative authority, a local school board may not appoint a new school superintendent for a term beginning after the terms of a majority of the current board expire. 1995 Op. Att'y Gen. No. 95-18.

Qualifications set out within this section are the only requirements provided by state law. 1948-49 Op. Att'y Gen. p. 122.

County superintendent must be citizen of county and qualified voter.

- In addition to the qualifications of former Code 1933, § 32-1002 (see now O.C.G.A. § 20-2-101), a county school superintendent, being a county officer within the meaning of former Code 1933, § 89-101 (see now O.C.G.A. § 45-2-1), must be a citizen of the county for a period of two years (now 12 months) prior to election and a qualified voter in the county entitled to vote. 1958-59 Op. Att'y Gen. p. 110.

Age qualifications.

- Since the mandatory retirement provision of O.C.G.A. § 47-3-101 is inapplicable to an elected school superintendent and O.C.G.A. § 20-2-101, which sets forth the qualifications of county school superintendents and includes no age ceiling, an elected school superintendent who has attained the age of 70 can run for office and serve if elected. 1985 Op. Att'y Gen. No. 85-58. (The mandatory retirement provision was deleted from § 47-3-101 in 1990.)

If elected superintendent from another county desired, local legislation should be enacted.

- Because of uncertainty as to how the courts would interpret former Code 1933, §§ 32-1002 and 89-101 (see now O.C.G.A. §§ 20-2-101 and45-2-1), the safer route to take, should it be desired to permit an elected superintendent of one county to serve as the appointed superintendent of another county, would be to proceed through the enactment of local legislation conditioned upon voter approval under Ga. Const. 1976, Art. VIII, Sec. V, Para. V (see now Ga. Const. 1983, Art. VIII, Sec. V, Para. IV), and not to attempt to rely upon the authorization contained in former Code 1933, § 32-1002. 1977 Op. Att'y Gen. No. 77-11.

"Election" means regular election, not primaries.

- Word "election" contained in this section has reference to the regular election in which county officers are elected and not primaries. 1952-53 Op. Att'y Gen. p. 74.

This section has reference to the regular election in which county officers are elected and not primaries. 1954-56 Op. Att'y Gen. p. 307.

Military experience may not lawfully be substituted for actual teaching or educational administrative experience; this is not to say that an individual whose military duties were in the field of actual teaching or educational administration could not include that time in computing actual teaching or educational administrative experience. 1963-65 Op. Att'y Gen. p. 355.

Filing certificate prior to running in election satisfies section.

- Filing a certificate under oath at any time prior to qualifying to run in the general election would be sufficient to satisfy this section. 1963-65 Op. Att'y Gen. p. 355.

Individual appointed to fill vacancy must meet qualifications and file certificate.

- An individual appointed to fill a vacancy in the office of county school superintendent pending the election of a new superintendent must meet the qualifications of superintendents generally and must file a certificate showing such qualifications with the State Board of Education. 1963-65 Op. Att'y Gen. p. 765.

School superintendents with one year's experience outside state are not exempt.

- Exemption referred to in O.C.G.A. § 20-2-101, which excludes individuals from having to meet the qualifications set forth in subsection (a) of that section, refers only to independent and county school superintendents with one year's service as a school superintendent in Georgia, whereby superintendents with one year's experience as a superintendent outside the state are not exempted and must meet all the requirements set forth in subsection (a) of that section in order to hold the office of superintendent of schools. 1989 Op. Att'y Gen. 89-34.

Only exceptions to obligatory language of this section are those which are expressly provided for. 1963-65 Op. Att'y Gen. p. 355.

Am. Jur. 2d.

- 68 Am. Jur. 2d, Schools, §§ 17, 67, 70.

C.J.S.

- 78 C.J.S., Schools and School Districts, §§ 124 et seq., 132.