Mississippi Advisory Opinions February 23, 2007: No. 2007-00087 (February 23, 2007)

No. 2007-00087.

Dear Dr. McLemore:

Attorney General Jim Hood received your request for an official opinion and assigned it to me for research and response. In your letter of request, a copy of which is attached hereto and incorporated herein by reference, you describe recent circumstances in which Mayor Melton received medical treatment in the Tyler, Texas and advised the City Council through press releases that the Chief Administrative Officer and the City Attorney had been appointed to oversee the day to day operations of the City.

In your letter you refer to section 21-8-19 of the Mississippi Code and you pose several questions relating the interpretation of this section and the respective authority of the mayor, city council, and the employees appointed to manage the city in the mayor's absence.

Question 1. What recourse does the City Council have in this situation when the Mayor fails to appoint a member of the council as acting mayor prior to leaving the City for an extended period of time and undergoing major heart surgery in another state?

In response, section 21-8-19 of the Mississippi Code provides:

Whenever the mayor shall be prevented by absence from the municipality, disability or other cause from attending to the duties of his office, the mayor shall appoint a member of the council to assume the duties of the mayor. However, any acting mayor so appointed shall retain his right to vote in the council. Whenever the mayor shall have been unable to attend to the duties of his office for a period of sixty (60) consecutive days for any of the above stated reasons, or whenever the mayor shall be incapable of making such appointment, an acting mayor shall be appointed by the council from among its members and said acting mayor shall succeed to all the rights, powers and duties of the mayor or the then acting mayor. Such acting mayor shall serve until the mayor returns to office or until a new mayor has been elected to fill the unexpired term of the original mayor. A new mayor shall be elected at a special election to be called and held as provided by law for the holding of municipal elections; provided that the acting mayor shall complete the term of the original mayor if a general municipal election is to be held within six (6) months of the determination of the council hereinafter provided for in this section. Prior to the calling of a special election pursuant to this section, the council, by a two-thirds ( 2/3 ) vote of all members of the council, shall make a determination that the mayor is incapable of completing his term of office. In the event of the death of the mayor the council shall appoint an acting mayor as provided in this section to serve until a successor is elected. Within thirty (30) days of the mayor's death the council shall call a special election as provided in this section to elect his successor; provided that the acting mayor shall complete the term of the original mayor if a general municipal election is to be held within six (6) months of the death of the original mayor.

(Emphasis added).

We note from recent news reports that Mayor Melton has returned to the city following medical treatment and is directly exercising the powers of the mayor. Mayor Melton's absence is now a matter of past action that we are unable to address by way of official opinion. Official opinions are intended to provide public officials with advice on prospective matters and to provide them with civil and criminal immunity when they follow such advice in good faith. As a matter of information and for future guidance, we note that section 21-8-19 requires a mayor to appoint a member of the city council to assume the duties of the mayor, when the mayor is prevented from performing the duties of his office due to absence, disability or other causes. In instances in which a mayor is unable to attend to the mayor's duties for a period of sixty consecutive days for the reasons cited in that section, the city council is required to appoint one of its members as acting mayor.

Question 2. Does state law give the Mayor the authority to appoint the Chief Administrative Officer and the City Attorney over the day to day operations of the City in his absence?

As noted in our response to question 1, we are unable to address your question by way of official opinion since Question 2 also involves a matter of past action. For information and future guidance, section 21-8-19 does not contemplate the appointment of a city employee or a group of city employees to assume the duties of the mayor. As we stated previously, the mayor is required to appoint a member of the city council, when the mayor is prevented from performing mayoral duties due to absence, disability or other causes. In any given set of circumstances, a factual determination must be made that the mayor is unable to perform the duties of the office of mayor. That determination is initially made by the mayor. Under section 21-8-19 the city council is only authorized to appoint a council member as acting mayor after the period of disability has reached sixty consecutive days.

Question 3. Are the Chief Administrative Officer and the City Attorney authorized to sign and enter into contracts on the behalf of the Mayor in his absence? What are the ramifications of any contracts signed by the Chief Administrative Officer and the City Attorney? Are contracts signed by the Chief Administrative Officer and the City Attorney between the City of Jackson and outside entities legally binding?

To the extent that your questions relate to past action, we are unable to respond by way of official opinion for the reasons set forth above. The validity of such agreements may only be determined by a court of competent jurisdiction. For informational purposes and future guidance, we offer the following advice. As previously stated, there is no authority under section 21-8-19 for the appointment of city employees by a mayor to perform the duties of the mayor during a period of disability of the mayor.

However, a mayor in the ordinary course of conducting the city's business may delegate certain powers to city employees to assist in the operation and management of the city. A determination of whether a particular power is delegable and whether the form of the delegation is effective would have to be made on a case by case basis.

Question 4. You cite the provisions of section 21-8-19 of the Mississippi Code relating to the appointment of an acting mayor by the City Council and ask: What are the ramifications of the City Council in this situation? What are the ramifications if the council fails to follow state law and appoint any acting mayor? What recourse do council members have if they wish to appoint an acting mayor from the body, but are in the minority on this opinion?

In the event that the conditions have been met under section 21-8-19 for an appointment of an acting mayor by the city council, the city council is required to make such an appointment. If the city council refuses or is unable to make the required appointment, then a party authorized under section 11-41-1 et seq. of the Mississippi Code may seek a writ of mandamus to require the city council to make an appointment.

Very truly yours,

JIM HOOD,

ATTORNEY GENERAL

By: Chuck Rubisoff

Special Assistant Attorney General