Mississippi Advisory Opinions March 07, 2003: AGO 000015502 (March 7, 2003)

AGO 000015502.

Dear Mr. Austin:

Attorney General Mike Moore has received your letter of request and assigned it to me for research and reply. Your letter states:

The Pontotoc County Democratic Executive Committee is scheduled to qualify our candidates on March 11, 2003. The question has arisen as to whether a person may or may not run for the office of County Superintendent if such person resides in the Pontotoc Municipal Separate School District.

As per the Attorney General's opinion of August 24, 1982 concerning Hancock County, persons residing within a municipal school district may run for the County Superintendent position.

We would appreciate confirmation whether this opinion would also apply to Pontotoc County.

Mississippi Code Annotated, Section 37-5-71 (Revised 2001) prohibits qualified electors residing in municipal separate school districts in certain described counties from voting in the election for county superintendent of education. In some of those counties, a qualified elector residing in a municipal separate school district may be a candidate for county superintendent of education even though he cannot vote in that election.

Section 37-5-71 (4) provides in part:

The county superintendent of education, with the approval of the county board of education by its first having adopted a resolution of approval and spread upon its minutes, shall be elected from the county at large, exclusive of the municipal separate school district boundaries:

...

(c) In any county having a population in excess of seventeen thousand (17,000) and less than eighteen thousand (18,000), according to the 1970 federal decennial census, wherein Mississippi Highways 6 and 9 intersect.

It is our understanding that Section 37-5-71(4)(c) describes Pontotoc County.

In our opinion to Mr. Henry L. Otis, dated August 24, 1982 we opined that candidates in those counties described in subsections (3) and (4) of Section 37-5-71 may be residents of municipal separate school districts.

Insofar as the counties described in subsection (4) are concerned, we are unable to reconcile the Otis opinion with the specific language of that subsection. Subsection (4) specifically states that the superintendent of education of the counties described therein shall be elected from the county at large, exclusive of the municipal separate school district boundaries. However, such provision is predicated upon the county board of education first adopting a resolution of approval of such method of election.

Therefore, based on all of the above, we are of the opinion that a qualified elector and resident of the municipal separate school district in Pontotoc County may not be a candidate for the office of county superintendent of education provided the Pontotoc County Board of Education has in fact adopted a resolution of approval of such method of election for that office.

If the Pontotoc County Board of Education has not adopted the required resolution, a qualified elector and resident of the municipal separate school district could be a candidate for the office of superintendent of education provided he or she meets all other qualifications to hold said office.

To the extent that the above conflicts with the Otis opinion or any other prior opinion of this office, such prior opinion(s) are hereby modified to conform to this opinion.

We point out that any change in the qualifications of candidates or method of electing public officials must be submitted to and approved by the U.S. Department of Justice prior to instituting the change.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General