2021 Georgia Code
Title 20 - Education
Chapter 2 - Elementary and Secondary Education
Article 3 - Local Boards of Education
§ 20-2-51. Election of Local Board of Education Members; Persons Ineligible to Be Members or Superintendent; Ineligibility for Local Boards of Education; Ineligibility for Other Elective Offices

1. No person shall be eligible for election as a member of a local board of education who is not a resident of the school district in which that person seeks election and of the election district which such person seeks to represent. Whenever there is in a portion of any county a local school system having a board of education of its own, receiving its pro rata of the public school fund directly from the State School Superintendent and having no dealings whatever with the local board, then the members of the board of such county shall be selected from that portion of the county not embraced within the territory covered by such local system.
2. Whenever a member of a local board of education moves that person's domicile from the district which that person represents, such person shall cease to be a member of such local board of education, and a vacancy shall occur. The member shall provide notice of such move to the secretary of the local board of education and the election superintendent within ten days of such move.
3. 1. No person serving on the governing body of a private elementary or secondary educational institution shall be eligible to serve as a member of a local board of education.
   2. No person employed by a local board of education shall be eligible to serve as a member of that board of education.
   3. No person employed by the Department of Education or serving as a member of the State Board of Education shall be eligible to serve as a member of a local board of education.
   4. 1. No person who has an immediate family member sitting on a local board of education or serving as the local school superintendent or as a principal, assistant principal, or system administrative staff in the local school system shall be eligible to serve as a member of such local board of education. As used in this paragraph, the term "immediate family member" means a spouse, child, sibling, or parent or the spouse of a child, sibling, or parent whose employment as the local school superintendent or as a principal, assistant principal, or system administrative staff in the local school system began on or after January 1, 2010. This paragraph shall apply only to local board of education members elected or appointed on or after July 1, 2009. Nothing in this Code section shall affect the employment of any person who is employed by a local school system on or before July 1, 2009, or who is employed by a local school system when an immediate family member becomes a local board of education member for that school system.
      2. Notwithstanding subsection (b) of Code Section 20-2-244, in local school systems in which the initial fall enrollment count conducted in 2009 pursuant to Code Section 20-2-160 does not exceed a full-time equivalent count of 2,800, the State Board of Education shall be authorized to waive this paragraph upon the request of a local board of education or an individual attempting to qualify to run for local board of education member and in accordance with the provisions of subsections (d) and (e) of Code Section 20-2-244; provided, however, that prior to submitting any such request, the local board of education shall, upon its own initiative, or at the request of such individual attempting to qualify to run for local board of education member:
         1. Provide 30 days' notice of the individual's intent to run for office; and
         2. Conduct a public hearing for the purpose of providing an opportunity for full discussion and public input on the issue of potential nepotism problems and other concerns with regard to such waiver. The public hearing shall be advertised at least seven days prior to the date of such hearing in a local newspaper of general circulation which shall be the same newspaper in which other legal announcements of the local board of education are advertised. The public hearing may be conducted in conjunction with a regular or called meeting of the local board or may be conducted independently, at the local board's discretion.

         The cost of such notice and public hearing shall be borne by the local board. The State Board of Education shall approve or deny a waiver request no later than 45 days after receipt of such waiver request, taking into consideration whether the benefit to the public would justify approval of the waiver. An approved waiver must be received by the local election superintendent prior to an individual's filing of a declaration or notice of candidacy in accordance with Article 4 of Chapter 2 of Title 21.

4. Reserved.
5. In addition to any other requirements provided by law, no person shall be eligible for election as a member of a local board of education unless he or she:
   1. Has read and understands the code of ethics and the conflict of interest provisions applicable to members of local boards of education and has agreed to abide by them;
   2. Has agreed to annually disclose compliance with the State Board of Education's policy on training for members of local boards of education, the code of ethics of the local board of education, and the conflict of interest provisions applicable to members of local boards of education; and
   3. Has completed all prior annual training requirements established by the local board of education and the State Board of Education pursuant to Code Section 20-2-230 if such person is eligible for reelection as a member of the local board of education.

      Each person offering his or her candidacy for election as a member of a local board of education shall file an affidavit with the officer before whom such person has qualified for such election prior to or at the time of qualifying, which affidavit shall affirm that he or she meets all of the qualifications required pursuant to this subsection. This subsection shall apply only to local board of education members elected or appointed on or after July 1, 2010.

6. No person who is on the National Sex Offender Registry or the state sexual offender registry shall be eligible for election to or service on a local board of education.

(Ga. L. 1919, p. 288, § 77; Code 1933, § 32-902; Ga. L. 1953, Nov.-Dec. Sess., p. 334, § 1; Code 1933, § 32-903.1, enacted by Ga. L. 1972, p. 236, §§ 1, 2; Code 1933, § 32-903.2, enacted by Ga. L. 1975, p. 828, § 1; Ga. L. 1981, p. 602, § 1; Ga. L. 1981, p. 1549, §§ 1, 2; Ga. L. 1982, p. 2107, § 17; Ga. L. 1983, p. 3, §§ 16, 53; Ga. L. 1984, p. 22, § 20; Ga. L. 1989, p. 425, § 1; Ga. L. 1992, p. 2339, § 1; Ga. L. 1993, p. 1279, § 1; Ga. L. 2009, p. 367, § 1/SB 14; Ga. L. 2009, p. 782, § 2/HB 251; Ga. L. 2010, p. 452, § 2/SB 84; Ga. L. 2011, p. 752, § 20/HB 142; Ga. L. 2015, p. 1376, § 1/HB 502; Ga. L. 2020, p. 62, § 1-2/SB 68; Ga. L. 2021, p. 922, § 20/HB 497.)

The 2015 amendment, effective July 1, 2015, substituted "Reserved" for the former provisions of subsection (d), which read: "In all counties of this state having a population of not less than 500,000 or more than 600,000 according to the United States decennial census of 1990 or any future such census, the members of the county boards of education taking office after December 1, 1975, shall not hold any other elective governmental office. If any member of any such board should qualify at any time after December 1, 1975, for nomination or election to any other elective governmental office other than for membership on such county board, such member's position on such county board shall thereby become vacant. Such vacancy shall be filled as provided by the law applicable to any such county board."

The 2020 amendment, effective July 1, 2021, deleted "and" at the end of (e)(1), substituted "; and" for the period at the end of paragraph (e)(2), and added paragraph (e)(3).

The 2021 amendment, effective May 10, 2021, part of an Act to revise, modernize, and correct the Code, substituted "education" for "educa?tion" in subparagraph (c)(4)(B).

- For survey article citing developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981).

JUDICIAL DECISIONS

Editor's notes.

- Some of the cases cited below were decided prior to the 1993 amendment of this Code section. Under the former version, school board members were selected by the grand jury.

Section is on its face a general law unaffected by unreasonable classification. Gibson v. Hood, 185 Ga. 426, 195 S.E. 444 (1938) (decided prior to 1993 amendment).

- Georgia's constitutional and statutory scheme for selecting its grand juries and boards of education is not inherently unfair, or necessarily incapable of administration without regard to race; the federal courts are not powerless to remedy unconstitutional departures from Georgia law by declaratory and injunctive relief. Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970) (decided prior to 1993 amendment).

Limitation of school board membership to freeholders violated the equal protection clause of the Fourteenth Amendment. Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 334 and prior to amendment by Ga. L. 1983, p. 3).

Purpose of this section is to ensure that members of the respective county boards of education will not be hindered by conflicting interests or loyalties in achieving for their counties the best possible educational facilities. Turner v. Lashley, 239 Ga. 678, 238 S.E.2d 371 (1977) (decided prior to 1993 amendment).

- This section expressly provides "terms" of tenure of office for the members of the county boards and is not to be construed as excluding "unexpired terms" to be filled by the election of another in the event of resignation of an incumbent. In the event of such an election of a successor, the succession would be for the remainder of the period the predecessor would have served had the member not resigned. Fulford v. Colston, 193 Ga. 893, 20 S.E.2d 579 (1942) (decided prior to 1993 amendment).

- Strict scrutiny review should not have been applied to plaintiff school board members' challenges under the First and Fourteenth Amendments to O.C.G.A. § 20-2-51(c)(2) because the statute's nepotism provision prohibited plaintiffs only from running for the school board in districts where certain family members were employed, but the statute did not otherwise impair plaintiffs' right to run for office or to vote; plaintiffs' injury was not so severe as to require strict scrutiny. Plaintiffs' claims that the statute was both too narrow and overbroad also failed; that the statute did not prevent nepotism in all its possible forms did not heighten the severity of the restriction to necessitate strict scrutiny. Grizzle v. Kemp, 634 F.3d 1314 (11th Cir. 2011).

Vocational technical school is not sufficient conflict of interest to bar membership on county board of education because it is considered to be an institution above the high school level. Turner v. Lashley, 239 Ga. 678, 238 S.E.2d 371 (1977) (decided prior to 1993 amendment).

- 1872 Education Act (Ga. L. 1872, p. 64) authorizing grand jury selection of county boards of education was not adopted with a racially discriminatory purpose. Vereen v. Ben Hill County, 743 F. Supp. 864 (M.D. Ga. 1990) (decided prior to 1993 amendment).

- Neither the "constitutional trust" provision (Ga. Const. 1983, Art I, Sec. II, Para. I) nor the Education Code (O.C.G.A. § 20-1-1 et seq.) presume that elected school board officials whose family members are employed by the local school system act in violation of their public duty merely by participating in decisions affecting school operations. Ianicelli v. McNeely, 272 Ga. 234, 527 S.E.2d 189 (2000).

County residents' challenge to a school board candidate's residency qualification under O.C.G.A. § 45-2-1(1) and Ga. Const. 1983, Art. VIII, Sec. V, Para. II, was barred by res judicata because another challenger had raised the same challenge, and the challenge had been resolved against the challenger by the county's board of elections. Lilly v. Heard, 295 Ga. 399, 761 S.E.2d 46 (2014).

Cited in McCollum v. Bass, 201 Ga. 537, 40 S.E.2d 650 (1946).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions rendered under the former version of this Code section prior to its 1993 amendment are included in the annotations for this Code section. Under the former version, school board members were selected by the grand jury.

- To the extent that this provision conflicts with the constitutional provision on boards of education, the latter controls, but such conflict does not otherwise render other provisions contained in the Code invalid. 1960-61 Op. Att'y Gen. p. 151 (decided prior to 1993 amendment).

Ga. Const. 1945, Art. VIII, Sec. IX, Para. I (see now Ga. Const. 1983, Art. VIII, Sec. V, Paras. II and IV), to the extent that it conflicts with this section, supersedes the terms thereof, and this section must be read in conjunction with and pursuant to the constitutional provision. 1960-61 Op. Att'y Gen. p. 155 (decided prior to 1993 amendment).

- Grand jury of the county is clothed with the power to fix the beginning and ending of the term of the first appointees made after the adoption of the 1945 Constitution and thereafter all subsequent terms are to conform with the beginning of the term of the first appointee. 1960-61 Op. Att'y Gen. p. 155 (decided prior to 1993 amendment).

Residency requirements for the election of local school board members cannot be established by board bylaws. 1997 Op. Att'y Gen. No. U97-25.

- Members-elect of a local board of education shall not enter upon the duties of office until the members are qualified, commissioned, and administered the appropriate oaths. An incumbent board member who has been reelected or reappointed may continue to serve as an official member of the board prior to receiving the commission and being administered the appropriate oaths for the new term. 1975 Op. Att'y Gen. No. 75-15 (decided prior to 1993 amendment).

As local board members are public officers, their terms shall continue until successors are commissioned. 1975 Op. Att'y Gen. No. 75-15 (decided prior to 1993 amendment).

- When the local grand jury fails to make an appointment to fill the office of a member of the county board of education whose term has expired, if the member has not resigned, the member continues to be a member of the county board of education until a successor is selected and qualified. 1958-59 Op. Att'y Gen. p. 107 (decided prior to 1993 amendment).

- Citizen-resident of an independent school district is not disqualified from participating in the selection of a member of a county board of education by a grand jury of which the citizen-resident is a member. 1960-61 Op. Att'y Gen. p. 151 (decided prior to 1993 amendment).

- No person employed by or serving as a member of the board of any other public school system may serve as a member of a county board of education. 1974 Op. Att'y Gen. No. U74-69 (decided prior to 1993 amendment).

- Neither an employee of the State Department of Education or of a county board of education is eligible for membership on the county board of education. 1974 Op. Att'y Gen. No. U74-69 (decided prior to 1993 amendment).

Principal or school teacher in elementary school could be candidate for county board of education. 1958-59 Op. Att'y Gen. p. 140 (decided prior to 1993 amendment).

Teacher may serve as a county commissioner unless prohibited by a local law or unless a local circumstance would allow the commission to affect the pay or other conditions of employment of teachers. 1999 Op. Att'y Gen. No. U99-3.

Members of a county board may be employed by a separate school system even if the board contracts with that system for use of the county's middle and high schools. 1999 Op. Att'y Gen. No. U99-7.

Local board member is required to take an oath affirming that the member is not the holder of public money due this state, that the member is not the holder of an office of the United States or of any one of the several states, that the member is otherwise qualified to hold office, that the member meets the residency requirements for office, and that the member will support the Constitution of the United States and of this state. Until the member takes that oath a local board member is not to enter upon the duties of that office. 1975 Op. Att'y Gen. No. 75-15 (decided prior to 1993 amendment).

- Vacancy in a county board of education, which resulted from a quo warranto action and determination that a board member was ineligible at the time the member was elected and sworn in and continues to be ineligible to hold that office, is the equivalent of a failed election and must be filled by special election under former Code 1933, § 34-1514. 1980 Op. Att'y Gen. No. 80-60 (decided prior to 1993 amendment).

RESEARCH REFERENCES

Am. Jur. 2d.

- 68 Am. Jur. 2d, Schools, § 67 et seq.

- 78 C.J.S., Schools and School Districts, §§ 94, 95, 124 et seq.

- Right of school teacher to serve as member of school board in school district where employed, 70 A.L.R.3d 1188.

Applicability and application of § 2 of Voting Rights Act of 1965 (42 USCS § 1973) to members of school board, 105 A.L.R. Fed. 254.