Mississippi Advisory Opinions March 09, 1993: AGO 93-0144 (March 09, 1993)

Advisory Opinion Text

J. Max Kilpatrick, Esquire

Attorney for Neshoba County Board of Supervisors

Post Office Drawer 520

Philadelphia, Mississippi 39350

Re: Community Hospital Board of Trustees

Dear Mr. Kilpatrick:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

“Recently, Neshoba County, Mississippi, submitted a plan for redistricting to the United States Justice Department, which was pre-cleared and subsequently approved by the United States District Court for the Southern District of Mississippi.

As a result of the redistricting, Neshoba County held special elections in November, 1992, and elected supervisors from each of the newly created districts.

Neshoba County owns a community hospital and it is currently being managed by a five (5) member Board of Trustees. A member of this Board of Trustees, who was originally appointed from Supervisor District 5 for a period of five (5) years from February 6, 1989, now resides in the newly created Supervisor District 1. A copy of the order appointing said trustee is enclosed herein.

Section 41–13–29, Mississippi Code of 1972, Annotated, requires that each member of the Board of Trustees of community hospitals be a resident of the district from which he is appointed and serves. Since the appointee from Supervisor District 5 no longer resides in that district but resides in Supervisor District 1, can he continue to serve as a member of the Board of Trustees or is the position vacated as a result of redistricting?”

In response to your inquiry we have consistently opined that elected and appointed officials are entitled to serve the remainder of their terms even though district lines have been legally altered so that said officials no longer reside within the districts they were elected or appointed to represent. This remains the opinion of this office. As to elected officials please see the enclosed copy of an opinion addressed to Ms. Pearl Mills, dated December 13, 1989. As to officials appointed by a board of supervisors please see the enclosed copy of an opinion addressed to Honorable Robert O. Allen, dated February 10, 1984 which is one of the attachments to the Mills opinion.

Sincerely,

Mike Moore, Attorney General.

Phil Carter, Assistant Attorney General.

Note

TO RETRIEVE THE FULL TEXT OF THE ATTACHED OPINION(S) SET FORTH AT THIS POINT, ENTER THE FOLLOWING FIELD SEARCH:

(12–13–89) & TI(Pearl +2 Mills)

(2–14–89) & TI(Richard +2 Noble)

and govern election of members of the board of education in every such county.

(3) Any vacancy on such board, as now or hereafter constituted, shall be filled in the manner provided by section 37–5–19.

(4) No person who is a resident of the territory embraced within a municipal separate school district or a special separate municipal school district shall be eligible to be a member of the county board of education.

(5) No person shall be elected or appointed to such board who is not a resident freeholder in the district for which he is elected or appointed, and the owner of real estate of the value of five thousand dollars ($5, 000.00).

SOURCES: Codes, 1942, §§ 6271–21, 6271–22, 6271–23, 6271–24, 6271–25, 6271–26; Laws, 1966, ch. 428, §§ 1–6, eff from and after passage (approved June 15, 1966).

Editor's Note—

In view of the broad language employed in the per curiam opinion of the three-judge federal district court in Evers v State Board of Election Commrs. 327 F.Supp 640, at p 644, some doubt may arise as to the enforceability of each election provision of the Code of 1942, amended subsequent to November 1, 1964, brought over into the Mississippi Code of 1972.

Research and Practice References—

47 AmJur (1st ed), Schools § 30.

78 CJS, Schools and School Districts § 93.

§ 37–5–19. Filling of vacancies on board.

Vacancies in the membership of the county board of education shall be filled by appointment, within 60 days after the vacancy occurs, by the remaining members of the county board of education. Said appointee shall be selected from the qualified electors of the district in which the vacancy occurs, and shall serve until the first Monday of January next succeeding the next general election, at which general election a member shall be elected to fill the remainder of the unexpired term in the same manner and with the same qualifications applicable to the election of a member for the full term.

In the event the vacancy occurs more than five months prior to the next general election and the remaining members of the county board of education are unable to agree upon an individual to be appointed, any two of the remaining members may certify such disagreement to the county election commission. Upon the receipt of such a certificate by the county election commission, or any member thereof, the commission shall hold a special election to fill the vacancy, which said election, notice thereof and ballot shall be controlled by the laws concerning special elections to fill vacancies in county or county district offices. The person elected at such a special election shall serve for the remainder of the unexpired term.

SOURCES: Codes, 1942, § 6271–04; Laws, 1953, ExSess ch. 10, § 4; 1960, ch. 299.

§ 37–5–21. Compensation of members of the board.

Members of the county board of education shall be reimbursed for their expenses in attending meetings of the county board of education at the rate of twenty dollars ($20.00) per day, plus seven cents (7<) per mile for necessary travel. However, no member shall be paid per diem in excess of sixty days in any one year. Such per diem and travel expenses shall be paid on order of the county board of education by pay certificates issued by the county superintendent of education against the funds allotted for county administrative expense. The members of the county board of education may be paid twenty dollars ($20.00) per day for attending board meetings in those counties having six or more school districts, ten dollars ($10.00) of which shall be paid out of the general county fund, provided the board of supervisors authorizes such extra payment.

SOURCES: Codes, 1942, § 6271–05; Laws, 1953, ExSess ch. 10, § 5; 1955, ExSess ch. 47, § 1; 1960, ch. 308, § 2; 1962, ch. 343; 1966, ch. 405, § 1; 1970, ch. 523, § 1, eff from and after passage (approved April 1, 1970).

§ 37–5–23. Members to furnish bond.

Before entering upon the discharge of the duties of his office, each member of the county board of education shall furnish a good and sufficient surety bond in the sum of ten thousand dollars ($10, 000.00), payable to the State of Mississippi, and conditioned upon the faithful discharge of his duties. Said bond shall be approved in the manner provided by section 25–1–19, and subject in all respects to the provisions of said section. The premium on said bond shall be paid out of the general county fund.

SOURCES: Codes, 1942, § 6271–07; Laws, 1953, ExSess ch. 10, § 7.