STATE OF ALABAMA OFFICE OF THE ATTORNEY GENERAL 501 WASHINGTON AVENUE STEVEN T. MARSHALL GENERAL no. BOX 300152 MONTGOMERY. AL 3313001 52 {334) 242-7300 September 1?5, 20} 8 Honorable Marcus E. McDowell Attorney, City of Fail-hope 60 North Section Street Fairhope, Alabama 36333 axlanicipalities -- Form of Government City Councils Referendum Election - saldwin County 1 "the petition process contained in the (Yocacti-Manager Act of 1982, as amended, only provides for the election of in single member districts pursuant to section 11?43A?8(a) oi? ?the Code of Alabama. Because Act 2018-569 did not modify the petition process set forth in section ll??l3A?2 of the Code of Alabama, petitions submitted after passage of the act. should not specify whether councilmembers will be elected at large or in single member districts. Such petitions are valid and must only comply with the provisions in section ll-43A-2. Section ll-43A?l, er. seq?, oi" the Code at" Alabama sets out the applicable piecess for the election of officers and the division of a municipality into districts in the instance of a successful ctr-?ction to change the form of got-eminent in a municipality. Honorable Marcus l3. :?Vthowell Page 2 Dear Mr. McDowell: This opinion of the Attorney General is issued in response to your request on behalf of the City of Fairhope. E. Does the petition process contained in the Councii-N?ianager Act oi" 1982, as amended by Act 2018-569, permit the adoption of the council- manager form of government by petition to consist of councilnrembers elected at large as provided in section ol' the Code of Alabama or does the petition process only provide for the election of in single member districts pursuant to section ll-43A-8t?a) oi" the Code of Alabama? FACTS Ahiij} ANALYSIS Your request states that a petition was drafted and circulated by a group of local citizens who are not affiliated with the Fairhope City Council. You further state that this petition seeks to change the form of government in the city from a mayor-council to a council~manager form of government. Based on information presented. this Office understands that the petition clearly notified the signer that the petition sought to change the current form of government. The petition did not, him-ever, expressly state whether future members of the council would be elected either zit-large or by district. The probate judge has certified the petition and set a special election for October 2. 2018. Questions have arisen regarding this petition due to recent changes in the law by Act 2018?569- The Act of 1982 is codified at section at. 505m of" the Code of Alabama. ALA. CODE 11-43A-1 to li~43A-52 (2008, Supp. 20H. tit-?estlaw 2018). Act 2018-569 added section and amended sections ll-43A-8. 11-43A-9, ll-43A?14, and 2018 Ala. Acts Section il-43A-l.l provides a method for a municipaiity to alter its term of government from inaytiir?council to council-manager through its municipal council. This provision, however, is in contrast to section 11-43A-2. which authorizes a change ofthe municipal form of government through the Use of a petition signed by a certain percentage of qualified electors Followed by a subsequent election by the Honorable Marcus E. hricDowcll Page 3 citizens of the municipality. ALA. COIN-E (Supp. 2018). Act 2018- 569 did not repeal or modify the petition process established in section 11? 43A-2. Section states as l\lot\-vithstanding any other provision of this article, any Class 4, 5. 6, 7- or 8 municipality having the mayor-council form of government, by resolution oft/16 council, may provide for the adoption of (he form of government under this article having. a council of either five or seven members. One member shall be elected at large, who shall be a voting; member of the council. Either four or six ?mothers shall be council menrbers either or large or from single-member districts, as the resolution shall provide. If a municipality has single-member districts for the election of council members when the council- managcr form of government is adopted in the municipality. the inunicipz?tlity shall continue with either four or six council. members elected from single-member districts and the mayor shall be elected at large After the adoption of the resolution by the council, the adoption of the council-manager form of government shall be governed by this article, except to the extent ot? any direct conflict in this article concerning the number and election of members oi the council and is subject to the resolution oi? the council providing for the adoption of the council-manager form of government. ALA. CODE ll~43.o.nl.l (Westlaw 2033'? (emphasis added). This provision Specifically authorizes the council to set forth in a resolution whether the members of the council will be electerl :11 large or by single member districts in instances where the council has previously been elected on an at-large basis. Councils that are ot?rrently single member districts are required to remain as such. Section ll-43A~8ta) does not state that the petition may determine the composition of the council. Instead, motion states as follows: Honorable Marcus E. Mct_)owell Page 4 The governing. body provided for herein shall be known collectit'ciy as the "Council of the City (Town) of {tame of cit}r or town to be inserted)" and shall have the powers and duties hereinafter provided. Except as hereinafter provided as otherwise provided for in Election the council Shari benefit-'8 members. One shall be the mayor, eiectcd by the voters at larger to preside over the deliberations of the council. One member shall be a council member elected by the voters at large. Three members shall he warns? rrtembers elected by the wafers [rm-rs each cf three singleumember districts. The council first. elected shall qualify and take office on the first Monday in October following the date of the next ensuing municipal election held for the election of members oi? a municipal governing body during a genera! election. ALA. CODE t'ift?eStlaw 2018) (emphasis added). Based on the foregoing. the petition process does not authorize the petitioners to select Whether the future council will be composed of members who are elected art-large or by districts. On the contrary, section 11-43A-8(a) mandates the composition of the 't?utnre councii in a municipality that decides to adopt a council-manager form government by using the petition process set forth in section This opinion does not address whether 2.1 referendum is necessary when the council process is used to change the term of government. The petition process contained in the Council?Manager Act 1982, as amended, provides for the electior ct" councilmembers in single member districts pursuant to section li-dBr?t-i?te) of the Code ofAlah-ama. if petitions suhmiited after adoption of Act 2018-569 do not specify whether council members Honorable Marcus ll. Page 5 will be elected at large or single member districts, are the petitions legally valid and due to be counted"? A in: 'As noted earlier, section sets forth the petition process that, until the passage ol? Act 3018-569. was the sole method used to modify the form of municipal government to a malinger?council form of government. The statute merely requires that the ask ?the question ol? [whether] the adoption of the councilunatntger form of government for such municipality [should] be submitted to the ouslit?ieri utters thereof.? ALA. CODE ll-43A~ 2 (2008). Nothing in section authorizes a petition to dictate the composition of the future council. Rather, the focus of the petition is whether the qualified electors oi? the municipality would like to have a change in the form of government. 0 71:95 um Because Act 2018?569 did not the petition process set forth in section petitions submitted after passage of the act should not specify Whether council members will be. elected at large or in single member districts. Such petitions are valid and must only comply with the provisions in section ll-43A-2. {l HR l3 ii" the petitions are valid and due to be counted, "hoe: are couriciintertihers to be elected and when and how will that deta:t?rziination be. made by the municipality"? liiAC'l'S. ANALYSH it?ll) CONCLUSION Your final inquiry questions how the municipality will make determinations regarding the election of subsequent eouneilmembers. Section ll-43A?l, er. sear, sets out the applicable process. For example, section 11- 43A-7 addresses the time for the {gilt-?itigC in the form of government. Moreover, section l-I-l3z?t-9 addresses isle division of the municipality into Honorable Marcus E. fvlcimn-?oll Page 6 districts as well as information regarding the election of municipal officers. Accordingly, strict attention should be given to these provisions. I hope this opinion answers your qnoslions. If this Office can be of further assistance. please contact Mono; Gaines olmy staff. Sincerely. it; i A A A Home): General WARD BEESON, Ill {?nial} Opinions Division 2520764/203982