Mississippi Advisory Opinions June 29, 2012: AGO 2012-00333 (June 29, 2012)

Advisory Opinion Text

Gene Barton, Esq.

Post Office Box 147

Okolona, MS 38860

RE: Reconstitution of the Okolona Municipal Separate School District

Dear Mr. Barton:

Attorney General Jim Hood is in receipt of your opinion request as the attorney for the City of Okolona and has assigned it to me for research and reply. In your letter, you request an official opinion from this office on the following questions:

Questions and Responses

Question 1: Does the City Council or a newly formed School Board hire a new superintendent? Who makes the decision to appoint the new superintendent? In other words, should the City of Okolona be sending out notices for résumés for a superintendent or is this to be done by a newly formed School Board?

Response: The newly formed school board appoints the superintendent of the reconstituted municipal separate school district. There is no authority for the municipal governing authorities to exercise any legal authority over the general operation of a municipal separate school district.

Question 2: Who will be in charge until a new superintendent is hired?

Response: The Mississippi Board of Education has appointed a conservator who will exercise control and administration of the schools constituting the Okolona Municipal Separate School District until a superintendent is appointed.

Question 3: Does the City Council appoint the new School Board including the two elected positions?

Response: Yes. The governing authorities in a mayor-council municipality, consisting of the city council and the mayor, are responsible for the appointment of the municipal separate school district trustees, including the two elected positions. The school board members appointed from the added territory must meet the requirements of a board member elected from the added territory.

Question 4: Previously one individual was appointed to serve on the School Board but he never took the oath of office or assumed the position in that the conservatorship was appointed before he ever assumed his duties as a member of the School Board. May this individual be appointed now to the newly created School Board?

Response: The individual who was appointed to serve as a school board member but never took the oath of office prior to the establishment of the conservatorship is not prohibited from being appointed to the newly created school board. Senate Bill 2737, 2012 Legislative Session, which prohibits a board member in office at the time of the declaration of a state of emergency in a school district requires pre-clearance by the U.S. Department of Justice prior to becoming effective. Further, even if the statute had been approved under the Voting Rights Act, the individual never assumed office and so would not be disqualified. This individual must meet all requirements for holding the office and must not be disqualified by the provisions of Section 37-7-203.

Question 5: Previously there was a superintendent serving at the time that the conservatorship was appointed. It is my understanding that he may have contacted the State of Mississippi to advise of the problems. By the conservator he was retained as a principal in one of the schools and has I believe a doctorate. Is he eligible for appointment as superintendent?

Response: The previous superintendent serving at the time that the conservatorship was established is not prohibited from being appointed as the superintendent of the reconstituted school district. Senate Bill 2737, 2012 Legislative Session, which prohibits a superintendent in office at the time of the declaration of a state of emergency in a school district requires pre-clearance by the U.S. Department of Justice prior to becoming effective. The previous superintendent must meet all statutory requirements for the office of superintendent.

Question 6: How will the staggered terms be set up as far as the new School Board members and at what time will the elections have to be conducted for the members that live outside the city limits, since the school district is a separate school district?

Response: The appointed school board members will fill the unexpired terms, allowing for staggered terms, except the two (2) school board members from the added territory shall serve only to the next general election following the appointment. The election of municipal separate school district trustees from added territory outside the corporate limits is to be conducted in the manner provided for in Section 37-7-215.

Question 7: Does the new statute that has recently been passed have to be pre-cleared by the Justice Department? If so, how do we operate with the conservator leaving until this is pre-cleared by the Justice Department?

Response: Senate Bill 2737, 2012 Legislative Session must be precleared by the U.S. Department of Justice. The Mississippi Board of Education has appointed a conservator who will exercise control and administration of the schools constituting the Okolona Municipal Separate School District until a superintendent is appointed.

Question 8: Can you give us any other advice or specifically what specific procedures does the Attorney General's office and the Department of Education give to us as far as how to proceed with the re-operation of our school system, being the Okolona Separate School District, with the proclamation signed by Governor Bryant?

Response: Pursuant to a conversation with the Deputy Superintendent supervising the Mississippi Recovery School District, the Mississippi Board of Education through its statutory responsibilities to verify that schools are complying with accreditation standards (37-17-6) will provide oversight and close monitoring during the next school year of the Okolona Municipal Separate School District to verify that the school district complies with accreditation standards during the reconstitution process.

Background Information

On February 24, 2010, the Governor of the State of Mississippi declared a state of emergency in the Okolona Municipal Separate School District. The Board abolished the school district effective on the date of the Governor's Proclamation and appointed a Conservator. Pursuant to Section 37-17-13 (1) of the Mississippi Code, the State Board of Education assumed all powers which were held by the previously existing school board members and the previously existing superintendent.

On May 18, 2012, the Mississippi Board of Education, with the concurrence of the Office of Accreditation, unanimously approved to request that the Governor of the State of Mississippi dissolve and lift the emergency declaration of the Okolona Municipal Separate School District. On May 24, 2012, Governor Phil Bryant, in response to the request of the Mississippi Board of Education, issued a Proclamation declaring that a State of Emergency no longer exists in the Okolona Municipal Separate School District. Subsequently, the Mississippi Board of Education notified the City of Okolona requested the governing authority to provide for the election or appointment of school board members and a superintendent to govern the district. In your capacity as attorney for the City of Okolona, you are requesting a formal opinion from the Attorney General's office with respect to how the transition is to occur.

Applicable Law and Discussion

Appointments made for School Board Vacancies

The Okolona Municipal Separate School District previously consisted of five (5) Board members, three (3) appointed members and two (2) elected members. The boards of trustees of all municipal separate school districts created, either with or without added territory, shall consist of five (5) members, each to be chosen for a term of five years, but so chosen that the term of office of one (1) member shall expire each year . The trustees of such municipal separate school district shall be elected by a majority of the governing authorities of the municipality. Miss. Code Ann. Section 37-7-203 (1) .

In the event that the added territory of a municipal separate school district furnishes thirty percent (30%) or more of the pupils enrolled in the schools of such district, then not more than two (2) members of the board of trustees of such school district shall be residents of the added territory outside the corporate limits. In the case of a member of the board of trustees who is required to come from the added territory outside the corporate limits, such member of the board of trustees shall be elected by the qualified electors of the school district residing in such added territory outside the corporate limits at the same time and in the same manner as is otherwise provided in this article for the election of trustees of school districts other than municipal separate school districts. Miss. Code Ann. Section 37-7-203 .

After a school district is abolished, at such time as the State Board of Education determines that the impairments have been substantially corrected, the State Board of Education shall reconstitute, reorganize or change or alter the boundaries of the previously existing district; however, no participation or assignment of territory formerly included in the abolished district to one or more other school districts may be made by the State Board of Education without the consent of the school board of the school district to which such territory is to be transferred, such consent to be spread upon its minutes. Miss. Code Ann. Section 37-17-13 (3) . At the time, the State Board of Education, in appropriate cases, shall notify the appropriate governing authority or authorities of its action and request them to provide for the election or appointment of school board members and a superintendent or superintendents to govern the district or districts affected, in the manner provided by law. Miss. Code Ann. Section 37-17-13 (3) .

Upon reconstitution of the school district, there will be vacant offices. The City Council (comprised of the mayor and council) appoints the new school board members, including the two elected positions. Section 37-7-203 provides, in part, as follows:

All vacancies shall be filled for the unexpired terms by appointment of the governing authorities of the municipality; except that in the case of the trustees coming from the added territory outside the corporate limits, the person so appointed shall serve only until the next general election following his appointment, at which time a person shall be elected for the remainder of the unexpired term in the manner otherwise provided herein.

The governing authorities in a mayor-council municipality, which includes both the city council and the mayor, are responsible for the appointment of municipal separate school district trustees. MS AG Op., Tisdale (February 4, 2000); MS AG Op., Compton (December 9, 1996). The appointed school board will fill the unexpired terms of the board members in office prior to the establishment of a conservatorship, allowing for staggered terms. The two (2) school board members from the added territory shall serve only to the next general election following the appointment. The election of municipal separate school district trustees from added territory outside the corporate limits is to be conducted in the manner provided for in Section 37-7-215. MS AG Op. Freeland (April 19, 2002).

Eligibility/Qualifications of school board members

Senate Bill 2737, 2012 Legislative Session, provides that a board member or superintendent in office at the time the Governor declares a state of emergency in a school district to be abolished shall not be eligible to serve in that office in a school district reconstituted, reorganized or changed after the Governor declares an emergency no longer exists. This Act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended. As of this date, this Act has not been pre-cleared by the U.S. Department of Justice and therefore, is not in effect. Therefore, the disqualification from serving as a school board member set out in Senate Bill 2737 is not currently state law.

Section 37-7-203 provides a list of individuals who are not eligible to be appointed as a school board member for a municipal separate school district. Specifically, no person who is a member of such governing body, or who is an employee of the municipality, or who is a member of the county board of education, or who is a trustee of any public, private or sectarian school or college located in the county, inclusive of the municipal separate school district, or who is a teacher in or a trustee of the school district, shall be eligible for appointment to the board of trustees. In the case of the appointment of an interim person to fill the vacancy of a trustee coming from the added territory outside the corporate limits, that person must also reside outside the municipal corporate limits so as to maintain the representation of those constituents as specified in statute. MS AG Op., Noble (October 9, 1984).

In response to the fourth question in your request, the individual who was appointed to serve as a school board member but never took the oath of office prior to the establishment of the conservatorship is not prohibited from being appointed to the newly created school board. Senate Bill 2737, 2012 Legislative Session, which provides that a board member in office at the time of the declaration of a state of emergency in a school district is not eligible to serve in that office in the reconstituted school district requires pre-clearance by the U.S. Department of Justice prior to becoming effective. This individual must meet all requirements for holding the office and must not be disqualified by the provisions of Section 37-7-203 .

Appointment of a Superintendent

The newly formed school board appoints the superintendent of the reconstituted municipal separate school district. The school board shall have the power and authority, in its discretion, to employ the superintendent, unless such superintendent is elected, for not exceeding four (4) scholastic years. Miss. Code Ann. Section 37-9-25 . This office has previously opined that it found no authority for the municipal governing authorities to exercise any legal authority over the general operation of a municipal separate school district. MS AG Op., Barton (January 18, 2008).

According to Section 37-9-13, no person shall be eligible to the office of superintendent of schools unless such person shall hold a valid administrator's license issued by the State Department of Education and shall have had not less than four (4) years of classroom or administrative experience. Senate Bill 2737, 2012 Legislative Session, prohibits a superintendent in office at the time the Governor declares a state of emergency in a school district to be abolished shall not be eligible to serve in that office in a reconstituted school district after the Governor declares an emergency no longer exists. As previously stated, Senate Bill 2737 has not been pre-cleared by the U.S. Department of Justice and therefore, is not currently in effect.

Transition of the Reconstituted School District

State law makes a distinction between the appointment of an interim conservator for a school district that has not been abolished with the school board and the superintendent remaining in office and the appointment of a conservator for a school district that has been abolished. According to Section 37-17-13 of the Mississippi Code, the Mississippi Board of Education appoints a conservator to assume control and administration of the schools formerly constituting the abolished district. Section 37-17-6 of the Mississippi Code provides that at the time the Governor, in accordance with the request of the State Board of Education, declares that the state of emergency no longer exists in a school district, the powers and responsibilities of the interim conservator assigned to the district shall cease. There is no similar provision in Section 37-17-13 related to a conservator appointed in an abolished school district. In the case of the reconstitution of an abolished district, there is a transition period to allow the governing authority to appoint school board members and to allow the newly appointed school board members to appoint a superintendent. The Mississippi Board of Education has appointed a conservator who will exercise control and administration of the schools constituting the Okolona Municipal Separate School District until a superintendent is appointed by the newly appointed school board members.

Pursuant to a conversation with the Deputy Superintendent supervising the Mississippi Recovery School District, the Mississippi Board of Education through its statutory responsibilities to verify that schools are complying with accreditation standards (Section 37-17-6) will provide oversight during the next school year of the Okolona Municipal Separate School District to verify that the school district complies with accreditation standards during the reconstitution process. The legislation passed during the 2012 Legislative Session (S.B. 2737) provides that upon the declaration of a state of emergency for any school district in which the Governor has previously declared a state of emergency, the State Board of Education may either (i) establish a conservatorship or (ii) abolish the school district and administratively consolidate the school district with one or more existing school districts or (iii) reduce the size of the district and administratively consolidate parts of the district, as determined by the State Board of Education; provided, however, that no school district which is not under conservatorship shall be required to accept additional territory over the objection of the district. This new legislation allows for the abolishment of a school district without the establishment of a conservatorship and administrative consolidation with another district where an emergency is declared in an school district that has previously been under conservatorship. According to the Deputy Superintendent, the Mississippi Department of Education will provide close monitoring to assist the school district in its attempt to be successful in reconstituting the district.

Sincerely,

Jim Hood, Attorney General.

Kathy S. Boteler, Special Assistant Attorney General.