Mississippi Advisory Opinions August 14, 2009: No. 2009-00485 (August 14, 2009)

No. 2009-00485.

Dear Ms. Edwards-Benson

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Issues Presented

We understand your questions to be: 1) Does the mayor of a code charter municipality have the authority to recommend an individual for appointment as municipal clerk or police chief to the board of aldermen without advertising the position in a newspaper; 2) May the municipal governing authorities, in a regular meeting, take action on a matter that is not on the printed agenda; and 3) Is there a law that prohibits the mayor from suggesting whom to vote for in an election on the basis that the voters' homes were built with a CDBG Grant?

Background

You state that one person was recommended by the mayor for appointment as city clerk and that person was appointed by a vote of three to two by the aldermen. You further state that the agenda for the August 4, 2009 board of aldermen meeting did not include the hiring of a police chief and that some interviews were conducted by the mayor and three of the five aldermen without the knowledge of the other two aldermen.

Preface

We preface our responses by stating that to the extent that these are matters already acted on by the municipal governing authorities we must decline to offer an official opinion. Pursuant to Mississippi Code Annotated Section 7-5-25 (Revised 2002) opinions of the Attorney General are issued on questions of law for the future guidance of those officials entitled to received them. An Attorney General's opinion can neither validate nor invalidate past action of governing authorities. By way of information only we offer the following comments.

Comments

The mayor of a code charter municipality has the authority to recommend to the board of aldermen an individual for appointment to a vacant municipal position without advertising the vacancy in a newspaper. We assume that any and all meetings regarding this matter were conducted in accordance with the open meeting statutes.

We know of nothing that would prohibit municipal governing authorities from taking up a matter in a regular meeting that is not on the printed agenda.

Our response to your third question is No. However, should a mayor go beyond normal campaigning and engage in intimidation or coercion in attempting to persuade voters to vote for a particular candidate or group of candidates by using threats, he or she could possibly be subject to prosecution pursuant to Section 97-13-37. It provides:

Whoever shall procure, or endeavor to procure, the vote of any elector, or the influence of any person over other electors, at any election, for himself or any candidate, by means of violence, threats of violence, or threats of withdrawing custom, or dealing in business or trade, or of enforcing the payment of a debt, or of bringing a suit or criminal prosecution, or by any other threat or injury to be inflicted by him, or by his means, shall, upon conviction, be punished by imprisonment in the county jail not more than one year, or by fine not exceeding one thousand dollars, or by both.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General