Whose opinion controls the term of an elected Florida school superintendent, the Attorney General or the Division of Elections?

Plain-English summary

The Lake County School Board attorney asked the Attorney General's office about the term of the county's elected superintendent of schools. Florida law sets a district school superintendent's term at four years (section 1001.46), and section 100.041(3)(a) provides that the term begins on the second Tuesday following the general election.

The office did not answer the question. The reason was jurisdictional: the Division of Elections in the Department of State has statutory authority under section 106.23(2) to issue opinions interpreting the elections code, and it had already issued an opinion on this very matter. Under the Attorney General's stated policy, when a request falls within another state agency's jurisdiction, the office transfers the request or directs the requester to that agency rather than issuing a competing opinion. Because the Division had already spoken, Assistant Attorney General Joslyn Wilson said it would be inappropriate for the office to comment.

To be helpful, the office enclosed background material: AGO 72-94 (issued before the Division had this opinion authority) and an earlier informal opinion to the Nassau County School Board attorney that had referred a similar superintendent-term question to the Division of Elections. The office noted that if the board questioned the validity of the Division's opinion, it could consider seeking a declaratory judgment.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Common questions

Q: Did the Attorney General decide the superintendent's term?
A: No. The office declined to opine because the question fell within the Division of Elections' jurisdiction, and the Division had already issued an opinion interpreting section 100.041(3)(a). The letter offered background documents but no opinion of its own on the term.

Q: Why did the Division of Elections, not the AG, handle it?
A: Section 106.23(2) gives the Division of Elections authority to issue opinions on the elections code. The Attorney General's policy is to defer to the agency with statutory jurisdiction over a question rather than issue an overlapping opinion.

Q: What could the school board do if it disagreed with the Division?
A: The office suggested that, if the board was concerned about the validity of the Division's opinion, it could consider seeking a declaratory judgment to have a court resolve its responsibilities.

Background and statutory framework

Two statutes frame the underlying term question. Section 1001.46 provides that a district school superintendent is elected for a four-year term, or until a successor is elected (or appointed) and qualified. Section 100.041(3)(a) fixes when the term begins: on the second Tuesday following the general election. Interpreting how those provisions apply to a particular officeholder is the kind of elections-code question that section 106.23(2) assigns to the Division of Elections, which is why the Attorney General's office deferred rather than issuing a substantive opinion.

Citations

Statutes

• s. 1001.46, Fla. Stat. (four-year superintendent term)
• s. 100.041(3)(a), Fla. Stat. (term begins second Tuesday after the general election)
• s. 106.23(2), Fla. Stat. (Division of Elections opinion authority)

Related material referenced

• AGO 72-94 (enclosed as background)
• Informal opinion to the Nassau County School Board attorney (April 11, 1996)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/superintendent-term-of-office
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8242

Original opinion text

Mr. Stephen W. Johnson

Lake County School Board Attorney

Post Office Box 491357

Leesburg, Florida 34749-1357

Dear Mr. Johnson:

The Office of Attorney General Bill McCollum has received your letter requesting this office's opinion regarding the term of the current elected superintendent of schools, the Honorable Anna Cowin.

You refer to section 1001.46, Florida Statutes, which states that the district school superintendent shall be elected for a term of 4 years or until the election or appointment and qualification of his or her successor. Section 100.041(3)(a), Florida Statutes, sets forth when the four-year term begins, stating that "[t]he term of office of a school board member and of a superintendent of schools shall begin on the second Tuesday following the general election in which such member or superintendent is elected."

You have advised this office that the Division of Elections in the Department of State has issued an opinion on this matter based upon its interpretation of section 100.041(3)(a), Florida Statutes. See section 106.23(2), Florida Statutes, relating to the authority of the division to issue opinions relating to the elections code. As noted in this office's statement of policy, when an opinion request is received on a question falling within the statutory jurisdiction of some other state agency, this office will normally transfer the request to that agency or advise the requesting party to contact the other agency. Inasmuch as the division has already commented on this matter, it would be inappropriate for this office at this time to comment on this issue.

In an effort to be of some assistance, I am enclosing a copy of Attorney General Opinion 72-94 (issued prior to the division's authority to render opinions in section 106.23), which Mr. Holland referred to in his response to Superintendent Cowin. The opinion states that the terms of office of district school board members elected to four-year terms in the general elections held in November of 1968 and 1970 will expire on the Tuesday two weeks following the day of the general elections to be held in 1972 and 1974, respectively. Also enclosed is an informal opinion to Mr. Marshall E. Wood, Attorney for the School Board of Nassau County which was considering making the school superintendent an appointive position and inquired about the term of the then current elected superintendent. This office referred Mr. Wood to the Division of Elections for resolution of this issue.

If the school board is concerned about the validity of the division's opinion, it may wish to consider seeking a declaratory judgment regarding its responsibilities.

Thank you for contacting the Attorney General’s Office.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/t

Enclosure: Op. Att'y Gen. Fla. 72-94 (1972); Inf. Op. to Mr. Marshall E. Wood, dated April 11, 1996