Mississippi Advisory Opinions March 06, 2012: No. 2012-00183 (March 6, 2012)

No. 2012-00183.

Dear Mayor Adams:

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

You ask three questions regarding candidates for municipal office and elected officials.

What are the residence requirements for a person running for office in a municipality?

The general residency requirement to be a qualified elector (registered voter) and thereby eligible to be a candidate for a municipal office is thirty days by the date he could be elected to the office.

If a potential candidate for municipal office has established legitimate residency within the corporate limits of the municipality, has registered to vote by the time the appropriate election officials meet to rule on candidate qualifications and will have been so registered for thirty days as of the date of the general or special election in which he could be elected, he would be qualified to be a candidate for and hold a municipal elective office.

If a primary is held prior to the general election, Mississippi Code Annotated Section 23-15-309 (Supp. 2011) would apply to the initial determination of the qualifications, including residency, of candidates. It provides in part:

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(4) ...., the proper municipal executive committee shall then determine whether each candidate is a qualified elector of the municipality, and of the ward if the office sought is a ward office, shall determine whether each candidate either meets all other qualifications to hold the office he is seeking or presents absolute proof that he will, subject to no contingencies, meet all qualification on or before the date of the general or special election at which he could be elected to office.

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Any determination by an executive committee that a candidate meets the qualifications to hold a particular office is subject to an independent determination by the municipal election commission prior to the general election should that candidate receive the nomination of his party in the primary.

The qualifications of party nominees, if any, and independent candidates in the general election must be determined by the municipal election commission. Section 23-15-361 provides in part:

(5) The municipal commission shall determine whether each party candidate in the municipal general election is a qualified elector of the municipality, and of the ward if the office sought is a ward office and shall determine whether each candidate either meets all other qualifications to hold the office he is seeking or presents absolute proof that he will, subject to no contingencies, meet all qualifications on or before the date of the general or special election at which he could be elected to office. ...

In a separate opinion issued to you on April 5, 2012, we discussed the requirements of being a qualified elector.

How long does a person need to live in the municipality to be a registered voter to run for office?

As indicated in our response to your first question, an individual must be a resident and registered voter for thirty days as of the date of the special or general election at which he could be elected to a municipal office.

What if an elected official is working out of town and is living out of town during the week. This is not construction related, a permanent job.

We assume your question relates to whether an elected official may continue in office while working and living out of town during the week.

The general rule on residency for purposes of voting and holding public office is that once a legitimate residency is established, that residency continues until it is abandoned in favor of another with no intent to return. Hubbard v. McKey, (Miss. 1966) Also, if one has filed for homestead exemption it creates a strong but rebuttable presumption that the property on which the homestead exemption is claimed is one's residence for election purposes. Hinds County Election Commission v. Brinston, (Miss. 1996).

It is a question of fact as to whether an elected official has vacated his office by virtue of abandoning his residence within the municipality with no intent to return.

As stated in our other opinion to you on April 5, 2012, an elected municipal official is required to devote whatever time is necessary to fully perform the duties of his office.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General