Mississippi Advisory Opinions April 04, 2013: AGO 2013-00119 (April 04, 2013)

Advisory Opinion Text

TEXT: Gene Barton, Esq

City Attorney, City of Okolona

P.O. Box 147

Okolona, MS 38860

AUTH: Liz Bolin

RQNM: Gene Barton

SUBJ: Elections

SBCD: 69

Re: Municipal Elections/Municipal Executive Democratic Committee

Dear Mr. Barton:

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:

Certain issues have arisen in the upcoming city elections.

I serve as County Chairman of the County Democratic Executive Committee and as City Attorney for the city of Okolona, Mississippi. I and other officers of the County Committee have received requests that we get involved.

There is a functioning Municipal Democratic Executive Committee elected at the last election.

I do not believe the County Democratic Committee has any jurisdiction over the city election. Could you please give me an expedited opinion on this issue?

With respect to the city of Okolona, all candidates are running as Democrats. Is it necessary to even have a primary election and may the election commissioners certify the winner?

Response

A county executive committee may serve as the temporary municipal executive committee if no municipal executive committee exists.

With regard to the municipal primary election, if there is only one qualified candidate for an office after the qualifying deadline, the proper executive committee shall declare the candidate the nominee. If all municipal general election races are unopposed, the election commission shall dispense with the election and declare each candidate elected without opposition as long as the candidates are otherwise qualified under the law.

Analysis and Conclusion

The City of Okolona operates under a special charter. Questions concerning a special charter municipality should be answered by reference to the provisions of the special charter. MS AG Op., Austin (November 29, 2010). In instances where a special charter is silent on a matter, general statutory provisions apply. MS AG Op., Lowe (February 13, 2009).

Miss. Code Ann. Section 23-15-313 addresses the selection of temporary executive committees in a municipality and states in part:

(1) If there be any political party, or parties, in any municipality which shall not have a party executive committee for such municipality, such political party, or parties, shall within thirty (30) days of the date for which a candidate for a municipal office is required to qualify in that municipality select qualified electors of that municipality and of that party’s political faith to serve on a temporary municipal executive committee until members of a municipal executive committee are elected at the next regular election for executive committees.

(2) If no municipal executive committee is selected or otherwise formed before an election, the county executive committee may serve as the temporary municipal executive committee and exercise all of the duties of the municipal executive committee for the municipal election . After a county executive committee has fulfilled its duties as the temporary municipal executive committee, as soon as practicable thereafter, the county executive committee shall select a municipal executive committee no later than before the next municipal election. (Emphasis added.)

The statute authorizes a county executive committee to serve as a temporary municipal executive committee and carry out the municipal executive committee’s duties in a municipal election in the event “no municipal executive committee is selected or otherwise formed before an election.” If a municipal democratic executive committee currently exists in Okolona and the committee carries out its duties with regard to the primary election, the county executive committee does not have authority to serve as a temporary municipal executive committee.

For purposes of responding to your second question, we assume all candidates are running for each office without opposition in both the primary and general elections.

Miss. Code Ann. Section 23-15-309 addresses nominations made at a municipal primary and states in part:

(5) Where there is but one (1) candidate, the proper municipal executive committee when the time has expired within which the names of candidates shall be furnished shall declare such candidate the nominee.

Pursuant to the statute, if a primary candidate is unopposed, the appropriate executive committee shall declare the candidate the nominee if he or she is otherwise qualified. A primary election is not required if all races are unopposed.

Miss. Code Ann. Section 23-15-361 references municipal general elections and states in part:

(6) If after the deadline to qualify as a candidate for an office or after the time for holding any party primary election for an office, there shall be only one (1) person who has duly qualified to be a candidate for the office in the general election the name of such person shall be placed on the ballot; provided, however; that if there shall be not more than one (1) person duly qualified to be a candidate for each office on the general election ballot, the election for all offices on the ballot shall be dispensed with and the municipal election commission shall declare each candidate elected without opposition if the candidate meets all the qualifications to hold the office . . ..

Pursuant to Section 23-15-361, no general election will be required if all general election races are unopposed. The statute directs the election commission to dispense with the election and declare each candidate elected without opposition as long as the candidates are otherwise qualified under the law.

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

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Elizabeth S. Bolin, Special Assistant Attorney General.