Mississippi Advisory Opinions October 11, 1995: AGO 95-0678 (October 11, 1995)

Advisory Opinion Text

Jerry R. Wallace, Esquire

Attorney for Madison County Board of Education

Post Office Box 1258

Ridgeland, Mississippi 39158-1258

Re: Residency of School Board Member

Dear Mr. Wallace:

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

“As attorney for the Madison County Board of Education I request an official opinion from your office with respect to the following matter. Please respond at your earliest convenience.

Four members of the county school board are serving in holdover positions pursuant to an injunctive order pending final federal voting rights preclearance of a special election to fill the vacancies. An individual, who has qualified as a candidate for the District 3 school board member, is in the process of building a new home. The candidate has sold his existing home in District 3, and it appears that it will be necessary for the individual to move from his existing home before construction of the new home is complete. The candidate has been unable to secure temporary housing in District 3. Therefore, it is necessary that the candidate move, on a temporary basis, into an apartment in District 2 until construction of the new home in District 3 is complete.

Since the candidate is a qualified elector in District 3, and intends to return to District 3 and reside in District 3 as soon as the new home is complete, and the candidate move, on a temporary basis, into an apartment or rent a house in District 2 and still retain his position as a qualified elector and qualified candidate for District 3 school and board member, and if elected serve as school board member in District 3?

For purposes of this opinion, we assure you that the request pertains to anticipated future action and not matters which have already occurred.”

In response to your inquiry the general rule is that residency, once established, continues until removal to another locality with intent to remain there and abandonment of the old residency without intent to return. Hubbard v. McKey, 193 So. 2d 129 (Miss. 1966) . Therefore, while residency is a question of fact, if the candidate in question will be only temporarily away from District 3 and has the intent to return, he may retain his status as a qualified elector of District 3 and as a candidate for membership on the county school board from that district. If elected he may, in our opinion, serve as the member from District 3. However, if he should remain away from District 3 for an extended period of time it would bring into question his residency and, therefore, his eligibility to represent District 3.

Please see the enclosed copy of our opinion addressed to Alderman Brian Barcellona, dated April 13, 1994 and the attachments thereto, which is in accord with the above.

Sincerely,

Mike Moore, Attorney General.

Phil Carter Special Assistant Attorney General.