Mississippi Advisory Opinions October 02, 2002: AGO 2002-0553 (October 02, 2002)

Advisory Opinion Text

Rush M. Clements

Attorney at Law

251 West Race Street

Rolling Fork, Mississippi 39159-2626

Re: Interpretation of Senate Bill 2864 (2002)

Dear Mr. Clements:

Attorney General Mike Moore has received your request for an official opinion and has assigned it to me for research and response. Your letter, on behalf of the Issaquena County Board of Supervisors relates to the interpretation of Senate Bill 2864 (2002) as it relates to the Western Line Consolidated School District. As your letter is quite lengthy, it is not duplicated in its entirety, but is attached and incorporated by reference. The ultimate question to our office is as follows:

When the county boards of supervisors cannot agree on a written document as set out in Senate Bill 2864, can the County without representation on the Board of Trustees make the appointment without the benefit of such an agreement? If not, what then?

Section 4 of Senate Bill 2864 (2002), amended Section 37-7-207 of the Mississippi Code of 1972 . The pertinent language of Section 37-7-207 is as follows:

[p]rovided, however, that in any Line Consolidated School District encompassing two (2) or more counties created pursuant to Laws, 1953, Extraordinary Session, Chapter 12, Section 8, in which, as a condition precedent to the creation of said district, each county belonging thereto was contractually guaranteed to always have at least one (1) representative on said board, in order that said condition precedent may be honored and guaranteed, in any year in which the board of trustees of such Line Consolidated School District does not have at least one (1) member from each county or part thereof forming such district, the board of trustees in such district shall be governed by a board of a sufficient number of trustees to fulfill this guarantee, five (5) of whom shall be elected from the five (5) special trustee election districts which shall be as nearly equal as possible and one (1) member trustee appointed at large from each county not having representation on the elected board. In such cases, the board of supervisors of each county shall make written agreement to guarantee the manner of appointment of at least one (1) representative from each county in the district, placing such written agreement on the minutes of each board of supervisors in each county.

In the facts as you have set out in your letter, the Issaquena County Board of Supervisors and the Washington County Board of Supervisors are unable to come to a resolution with regard to the written agreement which is required by the legislation. The Washington County Board of Supervisors is intent upon placing a term in the agreement which would require that as a condition precedent to an appointment being made, a person from the county having no representation would have had to qualify for the election. Issaquena County disagrees with this requirement.

It is clear from the language of Senate Bill 2864 (Chapter 598, Laws 2002) that the legislature fully intended that both counties have at least one member of the board of trustees. The language clarifies that in the case that each county or part thereof does not have at least one (1) representative, an appointment to the board shall be made from that area, thus increasing the membership of the board of trustees from the five (5) elected members. With regard to the mechanism for such an appointment, the statute provides no specifics, simply stating that the boards of supervisors of the affected counties are to make an agreement as to the manner of appointment. We find no authority for an agreement to be made by the counties which would limit the applicability of this provision, attempting to remove themselves from its terms. It would thwart the purpose and intent of this statute to enter into an agreement that the guarantee provided by Senate Bill 2864 only applies when a candidate from that county or part thereof qualifies for the election. The statute is meant to provide representation of all counties or parts thereof within the line consolidated school district, and to place limitations upon the statute's applicability is beyond the powers of a county board of supervisors. However, in response to your final inquiry, the statute does not provide that one board may unilaterally make an appointment in the absence of an agreement. It is incumbent upon the counties which are affected to come to an agreement, but that agreement should be limited to the manner of the appointment (how nominations are to be made, nominee selection criteria, by whom the appointment is to be made, etc.) and should not attempt to limit the applicability of the statute.

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

Sincerely,

Mike Moore Attorney General.

Heather P. Wagner Assistant Attorney General.