Mississippi Advisory Opinions March 01, 2013: AGO 2013-00061 (March 01, 2013)

Advisory Opinion Text

Wayne Rodolfich

Superintendent

Pascagoula School District

P.O. Box 250

Pascagoula, MS 39568-0250

Re: SB 2074 and School Board Trustee Election

Dear Mr. Rodolfich:

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:

I am the Superintendent of the Pascagoula School District. I have been advised that Senate Bill 2074 (2012) has been pre-cleared by the Department of Justice. The Pascagoula School District currently has an election set on March 2, 2013, for a Trustee election for the added territory under Mississippi Code Annotated Section 37-7-203 . As a result of the pre-clearance of Senate Bill 2074, I have the following questions which I would appreciate you answering:

1. Does pre-clearance of Senate bill 2074 mean that the Trustee election for the added territory does not take place on March 2, 2013?

2. Does the Trustee election for the added territory take place on November 5, 2013?

3. Senate Bill 2074 amended Miss. Code Ann. Section 37-7-215 to require all elections be held on the first Tuesday after the first Monday in November of each year and in the same manner as general, state and county elections are held and conducted. Most state and county elections were in 2011 and will occur again in 2015. See attached chart from the Secretary of State website. If trustee elections are held in the same manner as general, state and county elections are held, what year is the Trustee election to occur?

4. Is the term of a School Board Trustee still five years under Miss. Code Ann. Section 37-7-203 since that statute purportedly has not been amended by Senate Bill 2074?

5. Since Senate Bill 2074 has been pre-cleared and the District is to no longer conduct the election, but rather the County Election Commission will, does the District Board of Trustees need to take any affirmative action by vote or resolution as to the conduct of the Trustee election?

Response

1. Yes.

2. Yes.

3 The trustee election will occur in 2013.

4. Yes, a trustee's term is 5 years pursuant to Miss. Code Ann. Section 37-7-203 .

5. No.

Applicable Law and Analysis

Senate Bill 2074 (2012) enacted significant amendments to the procedures used in the election of municipal separate school district trustees. Pursuant to correspondence received from the U.S. Department of Justice on September 24, 2012 and December 7, 2012, the Department interposed no objections and the bill became effective on December 7, 2012.

Among other things, SB 2074 changes the timing of elections for municipal separate school districts with added territory. Section 2 of the newly enacted bill amended Miss. Code Ann. Section 37-7-215 and states "all such elections shall be held on the first Tuesday after the first Monday in November of each year in the same manner as general state and county elections are held and conducted."

Regarding the length of trustee terms, the bill does not amend Section 37-7-203 which sets municipal separate school district trustee terms at five (5) years. Prior to the preclearance of SB 2074, municipal separate school district trustees were elected on the first Saturday of March of each year, and the person elected immediately assumed the duties of office. The current law sets the election on the first Monday in November of each year and provides that the person elected assumes his duties on the first of day of January if the election is for the full term. The bill is silent as to whether current trustees who would have been up for election in March are now to serve until those persons elected in November take office in January, 2014.

The Mississippi Supreme Court in Guardianship of Albert Jermaine Duckett v. Albert Jermaine Duckett, Walter Williams Jr., and Walter Williams , 991 So.2d 1165 (Miss. 2008) stated:

If a statute is plain and unambiguous, there is no need for this Court to engage in statutory interpretation. Dupree v. Carroll , 967 So.2d 27, 30 (Miss. 2007) (citation omitted). On the other hand, if a statute is ambiguous or silent on a specific issue, statutory interpretation is appropriate. Id. "The primary rule of construction is to ascertain the intent of the legislature from the statute as a whole and from the language used therein." Bailey v. Al-Mefty , 807 So.2d 1203, 1206 (Miss. 2001) (quoting Clark v. State ex rel. Miss. State Med. Ass'n , 381 So.2d 1046, 1048 (Miss. 1980)). But "the [C]ourt, in determining the legislative intent, may look not only to the language used but also to its historical background, its subject matter, and the purposes and objects to be accomplished." Id. "Unthought of results must be avoided if possible, especially if injustice follows, and [ [[an] unwise purpose will not be imputed to the Legislature when a reasonable construction is possible." Evans v. Boyle Flying Serv., Inc. , 680 So.2d 821, 825 (Miss. 1996) (internal quotation and citation omitted). (Emphasis added.)

In order to avoid unintended results such as vacancies in office, we are of the opinion that the legislature intended for trustees currently holding office to continue serving until those elected in November take office on the first day of January following their election.

Conclusion

Trustee elections for municipal separate school districts with added territory will take place on the first Monday in November of each year. Trustees currently holding office will continue to serve until the terms for newly elected trustees begin on the first day of January following their election. Pursuant to SB 2074, the election is conducted by the county election commission; therefore, we know of no action necessary by the District Board of Trustees.

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

Sincerely,

Jim Hood, Attorney General.

Elizabeth S. Bolin, Special Assistant Attorney General.