Mississippi Advisory Opinions January 29, 2010: No. 2010-00014 (January 29, 2010)

No. 2010-00014.

Dear Mr. Crider:

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

You inquire as to whether it is necessary to reappoint a municipal employee when an action of a board of aldermen to fire the municipal employee was subsequently vetoed by the mayor. Specifically, you ask the following:

I am requesting a written opinion as to how our city should handle a situation that has arisen in our board meetings. When the present administration went into office in July at our first meeting, we proceeded to reappoint the people to positions and appoint new people to the committees. The aldermen decided to wait on the reappointment of the Fire Chief, the building inspector and Airport Manager. At the August meeting, we wanted to replace the building inspector with another candidate. It was on the agenda to terminate the present building inspector. The vote was 3 to 2 in favor of terminating the present inspector. The mayor at that time chose to veto the vote. I talked with your office and explained that he was still working in that position but he had never been reappointed to that position. I went back to the clerk to request that it be put on the agenda to appoint him to that position. The clerk advised it could not be put back on the agenda until the veto has been overridden but he has never been reappointed to this position by this administration. I would greatly appreciate your opinion and help in this matter.

Incumbent municipal employees hold over and serve at the will and pleasure of the governing authorities until their successors are appointed and qualified. Of course, if an employee's service is terminated by the governing authorities, the municipal employee no longer holds over in his/her position.

Pursuant to Mississippi Code Annotated Sections 21-3-3 and 21-3-5, the hiring and firing of municipal officers and employees in a code charter municipality is vested in the governing authorities, i.e., the board of aldermen, subject to mayoral veto. MS AG Op., Tucker (October 26, 2007; MS AG Op., Livingston (August 17, 2007). A mayor may veto an action of the board of aldermen, including, but not limited to, the firing of a municipal employee, in accordance with Section 21-3-15. Once a mayor has successfully vetoed an action of the board, the board may override such mayoral veto by a vote of two-thirds (2/3) of the members of the board on or after the third day following the return of the veto by the mayor. See Section 21-3-15. MS AG Op. Bogen (October 11, 1990). Any override attempt should take place at the next regular meeting or special called meeting more than three (3) days subsequent to the delivery of the mayor's veto message. MS AG Op., Huggins (September 23, 2005). We have opined that there is no "time limit" for reconsideration of a matter by the board. MS AG Op., Taylor (March 21, 1997). However, your inquiry did not make reference to an override attempt by the board of aldermen. Thus, we assume for the purposes of this opinion, that the mayoral veto was not successfully overridden and the building inspector in question is still employed by the municipality in that capacity.

Incumbent municipal employees may hold over and serve at the will and pleasure of the board of aldermen until their successors are appointed and qualified. Of course, if an employee's service is terminated by the board, the municipal employee no longer holds over in his/her position. MS AG Op., Holder (September 25, 2009); MS AG Op., Goddard and Livingston (June 8, 2007); MS AG Op., Shepard (April 30, 1986). Assuming that there was no successful override of the mayor's veto by the board of aldermen, the employee in question remains in the position of building inspector as a holdover employee as a result of the failed effort to terminate him. The building inspector is considered to be holding over until he is successfully terminated or another appointment is made that is not vetoed by the mayor. MS AG Op., Smith (December 16, 2005).

If our office may be of further assistance, please advise.

Sincerely,

JIM HOOD ATTORNEY GENERAL

By: Leigh Triche Janous

Special Assistant Attorney General