Mississippi Advisory Opinions January 11, 2013: AGO 2012-00583 (January 11, 2013)

Advisory Opinion Text

Tony Gaylor

Interim Hinds County Board Attorney

P.O. Box 686

Jackson, MS 39205-0686

SBCD: 75

Elizabeth S. Bolin, Special Assistant Attorney General

RQNM: Tony Gaylor

SUBJ: Elections

Re: Vacancy in County District Office.

Dear Mr. Gaylor:

Attorney General Hood is in receipt of your request for an official opinion and it has been assigned to me for research and reply.

Background and Questions Presented

Your letter states in part:

Please accept this correspondence as a formal request for an opinion with regard to a district office vacancy on the Hinds County Board of Supervisors. Accordingly, the Board of Supervisors requests a response to the following questions:

(1) When must the special election for the vacancy be held?

(2) Can a special election be held concurrently with the 2013 mayoral election or sooner?

(3) Are there any exceptions to when the special election can be held?

(4) What are the qualifications to be appointed as a member of a county Board of Supervisors?

A Is there a residency requirement?

B. Are there any bars to qualification because of prior misdemeanor or felony convictions?

(5) Are the qualifications to be elected as a member of a county Board of Supervisors different from the qualifications to be appointed as a member of the county Board of Supervisors?

a. If so, what are the differences?

b. Are there any bars to qualifications because of prior misdemeanor or felony convictions?

(6) What is the President of the Board of Supervisors’ role, if any, in filling a vacancy within the county Board of Supervisors?

Response

(1) The election must be held on the next regular special election day which is the first Tuesday after the first Monday in November, 2013.

(2) No.

(3) No.

(4) In order to be a member of the a county Board of Supervisors, one must be a resident of the district for which he is chosen and a qualified elector. No person is eligible to hold an office of profit or trust if a prior conviction renders him ineligible under Section 44 of the Mississippi Constitution of 1890.

(5) There are no differences. Please see our response to question number 4.

(6) Pursuant to Miss. Code Ann. Section 23-15-839, if the vacancy occurs when the board is not in session, the president of the board may appoint a qualified individual to fill the vacancy by and with the consent of the majority of the board of supervisors.

Applicable Law Discussion

Miss. Code Ann. Section 23-15-839 sets forth the procedures for filling vacancies in county or county district offices. The office of county supervisor is a county district office. In summary, the statute states that when a vacancy occurs in a county or county district office, and the unexpired term of the office is longer than six (6) months, the remaining members of the board of supervisors appoint a qualified person to serve until a special election is conducted at the next regular special election day occurring more than ninety (90) days after the vacancy occurs. The person elected in the special election serves for the remainder of the term. The first Tuesday after the first Monday in November of each year is designated by statute as the “regular special election day”. Miss. Code Ann. Section 23-15-833. This office has previously opined that a vacancy on a county board of supervisors must be filled in accordance with Section 23-15-839. MS AG Op., Higginbotham (May 12, 1993); MS AG Op., Smith (August 29, 1997). Therefore, the Hinds County Board of Supervisors must appoint a qualified individual to fill the vacancy until such time as the special election is held on the regular special election day in November, 2013.

Regarding the qualifications to be a member of the county board of supervisors, Miss. Code Ann. Section 19-3-3 states:

“A person shall not be a member of the board of supervisors who is not a resident freeholder in the district for which he is chosen, and the owner of real estate of the value of one thousand five hundred dollars.”

The “freeholder” requirement in Section 19-3-3 was ruled unconstitutional in Williams v. Adams County Board of Election Commissioners, 608 F.Supp. 599 (D.C. Miss 1985); however, the requirement that a member of the board of supervisors be a resident of the district he seeks to serve remains valid. MS AG Op., Salmon (June 17, 1991). In addition to being a resident of the district he serves, Section 250, Mississippi Constitution of 1890, requires a member of the board of supervisors to be a qualified elector. Section 250 states:

“ All qualified electors and no others shall be eligible to office , except as otherwise provided in this Constitution; provided, however, that as to an office where no other qualification than that of being a qualified elector is provided by this Constitution, the Legislature may, by law, fix additional qualifications for such office.” (Emphasis added).

Qualifications to be a qualified elector are found in Miss. Code Ann. Section 23-15-11. Section 23-15-11 states in part:

“Every inhabitant of this state, except persons adjudicated to be non compos mentis, who is a citizen of the United States of America, eighteen (18) years old and upwards, who has resided in this state for thirty (30) days and for thirty (30) days in the county in which he seeks to vote, and for thirty (30) days in the incorporated municipality in which he seeks to vote, and who has been duly registered as an elector under Section 23-15-33, and who has never been convicted of any crime listed in Section 241, Mississippi Constitution of 1890, shall be a qualified elector in and for the county, municipality and voting precinct of his residence, and shall be entitled to vote at any election.”

County supervisor is considered an office of profit or trust. MS AG Op., Shannon (April 6, 1995). Section 44 of the Mississippi Constitution provides that a person convicted of a felony in Mississippi is not eligible to hold an office of profit or trust. MS AG Op., Wiggins (March 13, 1984). Additionally, a person convicted after December 8, 1992 of an offense in another state which is also a felony in Mississippi, or of any felony in a federal court, is not eligible to hold an office of profit or trust. Section 44, Mississippi Constitution of 1890; MS AG Op., Walsh (March 16, 2007). (Please note Subsection 3 of Section 44 lists several offenses which are not considered disqualifying.) Finally, we know of no provisions of law that would disqualify an individual from serving on the board of supervisors because of a prior misdemeanor conviction.

Conclusion

The special election to fill the vacancy on the Hinds County Board of Supervisors must be held on the next regular special election day in November, 2013. Any person who is appointed in the interim or elected to fill the unexpired term must be a resident of the district he or she serves and a qualified elector. No person is eligible to serve as county supervisor if a prior conviction renders him ineligible under Section 44 of the Mississippi Constitution of 1890.

Please let us know if this office can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL