Mississippi Advisory Opinions April 04, 1979: 19790404 (April 04, 1979)

Advisory Opinion Text

Alderman Tom Westmoreland

Alderman Ronnie Teater and

Alderman Dr. R. V. Mahaffey

167 Maud Avenue

Mendenhall, Mississippi 39114

Municipal Officers

Dear Aldermen Westmoreland, Teater and Mahaffey:

Attorney General A. F. Summer has received your letter and has assigned it to me for research and reply.

Your letter states:

“As Aldermen for the City of Mendenhall, we are requesting an opinion as formal as possible, on the extent of a Mayor's Veto Power under the following set of facts:

“On March 6, 1979, the Board of Aldermen for the City of Mendenhall voted 3 to 2 to appoint a new Chief of Police. On March 12, 1979, the Mayor sent a letter to each Aldermen and to the City Clerk vetoing the appointment of the Chief of Police under Section 21-3-15.

“On March 12, 1979, I spoke with Mr. Allen, Special Assistant Attorney General, over the telephone and received a copy of your opinion for Mr. Willie Wallace, Alderman, City of Brandon, written February 15, 1979. Under the City of Brandon set of facts no chief had been appointed. What we are requesting is a definite yes or no answer as to the Mayor's power to veto a duly appointed Chief of Police by an election of a 3 to 2 vote by the City Board.

“The reason we request a definite answer on our personal situation is that our Mayor in a board meeting on March 20, 1979, refused to accept the opinion sent to me by Mr. Allen.

“We are also requesting information as to who may properly remove a duly elected Chief of Police and where this information is found in the Mississippi Code. Also, the proper process to follow in this removal action.

“We sincerely appreciate any help and information you can furnish us and for your assistance in the past.”

Reference is made to the case of Rich v. McLauren , 83 Miss. 95, 35 So. 337, decided in 1903. In this case, one Cook was elected police justice of Hattiesburg by vote of the board of aldermen and the mayor refused to allow Cook to take office. The court stated in its opinion:

“....Cook was elected police justice in the city, but by resolution. This was a proper and sufficient election, and it was held at the regular meeting on Tuesday, January 6th, which was the first regular meeting of the mayor and board of aldermen succeeding the previous regular election, as prescribed by section 2992 of said Code. The mayor had no power to vote in the election of said officer, because there was no tie . Bousquet v. State , 78 Miss. 484, 29 South. 399.

The mayor has no power to veto the election of such officer . He may give the casting vote, as a presiding officer of the tribunal known as the 'Mayor and Board of Aldermen', in such elections. Section 2979 of said Code. And he may veto any measure passed by the board of aldermen . See same section. But such an election is not 'a measure', within the meaning of that section . Section 3009 of said Code, referring to those ordinances which are to be recorded in the Ordinance Book, discriminates between the ordinances which are 'in their nature laws of the municipalities', and 'mere-orders or decrees temporary in their nature.' It requires no ordinance to elect a police justice, for manifest reasons, arising from convenience and necessity....”

Our records show an opinion of July 20, 1962, on the subject published in the 1961-63 Biennial Report of the Attorney General at Page 40 and given by the Honorable J. Ruble Griffin, then Assistant Attorney General, and presently Judge of the Circuit Court of the Second Circuit Court District of Mississippi. This opinion refers to statutes which are unchanged since 1962.

This 1962 opinion is instructive on the subject of the relations between mayors and aldermen and bears quotation:

“... I have your letter of July 12, 1962, wherein an opinion is requested which, for the sake of brevity, we shall refer to as a general discussion concerning the division of authority between the Mayor and the Board of Aldermen.

“First, we must admit that the statutes are in conflict. The Mayor by statute has superintending control over all of the city employees. It is the opinion of this writer that such control is of little effect, unless the Mayor has some power to enforce his request of certain employees. While on the other hand, the Board of Aldermen is vested with the power to hire employees.

“As stated above, the statutes are in conflict and cannot be harmonized except by administrative action on the part of the Mayor and Board of Aldermen. This office has been into this question on many occasions and, due to the apparent conflict in the statutes, we are unable to render an opinion that divides the authority between the Mayor and the Board of Aldermen.

“It appears to me that the Mayor might fire an employee, and the Board of Aldermen could rehire him. As to the question of the payment of the employee's wages, I am of the opinion that the Mayor's action and the issuance of a warrant is a ministerial function and one that he can by mandamus be forced to perform.

“ I am of the opinion that the hiring and firing of employees is not a measure within the meaning of Section 3374-40, Mississippi Code of 1942, and, therefore, is not subject to the Mayor's veto. In fact, Rich vs. McLaurin 83 Miss. 95, 35 So. 337, specifically so holds.

“I sincerely hope that this discussion will prove of some benefit to you. However, as stated above, the whole question resolves itself into either a political or administrative matter and not one that may be solved by reference to a statute.” (Emphasis Supplied)

This was followed by an opinion of June 9, 1965, by the same author and published at Page 72 of the 1963-65 Biennial Report of the Attorney General, stating:

“...I have your letter of June 9, 1965, wherein an opinion is requested as to whether or not the Mayor may veto the appointment of a city attorney.

“Under the authority of Rich vs. McLaurin, 83 Miss. 95, 35 So. 337, it is my opinion that the answer to your question is in the negative. The appointment of an officer is not a measure within the meaning of Section 3374-40, Mississippi Code of 1942, Recompiled .”

The 1965 opinion appears in an opinion of this office of February 5, 1970, given to Honorable Murray L. Williams of Water Valley, Mississippi by then Assistant Attorney General, and now Deputy Attorney General, Honorable W. D. Coleman:

“...I trust that I am not being presumptive in condensing the question you present as City Attorney for the City of Water Valley, Mississippi with respect to the provisions of Section 3374-40 of the Mississippi Code of 1942, Recompiled and Amended, to be whether the Mayor may veto the appointment of a Chief of Police.

“An opinion was rendered on June 16, 1965 as appears on page 72 of the 1963-65 Biennial Report of the Attorney General, wherein the case of Rich v. McLaurin , 83 Miss. 95, 35 So. 337, was cited that the appointment of an officer is not a measure within the meaning of Section 3374-40, supra . A copy of the former opinion is enclosed for your further reference and file. The opinion neither being reversed nor overruled remains the opinion of the Attorney General so that the answer to the question you present must be in the negative and that the Mayor is without authority of law to veto the employment of a Chief of Police, since such employment is not a measure within the meaning of the cited statute....” Mendenhall is a Code charter municipality.

Section 21-3-5 of the Mississippi Code of 1972, Annotated, (the Code) applicable to Code charter municipalities, states, in part, that the mayor and board of aldermen shall have the power to appoint a street commissioner and such other officers and employees as may be necessary.

Upon the matter of voting of the governing authorities of a Code charter municipality, reference is made to Section 21-3-15 of the Code:

“.... Duties of the mayor.

The mayor shall preside at all meetings of the board of aldermen, and in case there shall be an equal division, he shall give the deciding vote. He shall have the superintending control of all the officers and affairs of the municipality, and shall take care that the laws and ordinances are executed. He shall have power to veto, in writing, giving his reasons therefor, any measure passed by the board of aldermen, but a measure vetoed may be adopted notwithstanding, if two-thirds of the aldermen vote therefor.”

The text of Section 21-3-15 is identical to the text of Section 3374-40 cited in the opinions rendered by then Assistant Attorneys General Griffing and Coleman.

Section 21-3-3 of the Code states what officers of a Code charter municipality are elective officers and they include the marshal or chief of police. Additionally, under this section, the governing authorities have the power under State law to enact an ordinance to provide that all elective officers except those of mayor and alderman be made appointive by the governing authorities.

The municipal office of chief of police is described in Section 21-21-1 of the Code:

“.... Marshall or chief of police—duties—bond.

The marshal or chief of police shall be the chief law-enforcement officer of the municipality and shall have control and supervision of all police officers employed by said municipality. The marshal or chief of police shall be an ex-officio constable within the boundaries of the municipality, and he shall perform such other duties as shall be required of him by proper ordinance. Before performing any of the duties of his office, the marshal or chief of police shall execute and file with the clerk of the municipality, and subject to the approval of the mayor and clerk, a good and sufficient bond in an amount not less than one thousand dollars ($1, 000.00), nor more than twn thousand dollars ($10, 000.00), the exact amount of same to be fixed by the governing authorities of the municipality, which bond shall be conditioned upon the faithful performance of the duties of his office. The premium upon said bond shall be paid from the municipal treasury. If any marshal or chief of police shall fail to perform any of the duties of his office, it shall be the duty of the district attorney or county attorney upon receiving notice thereof to immediately file quo warranto proceedings against such official.

The provisions of this section shall be applicable to all municipalities of this state....”

The office is created by an act of the Legislature in the exercise of its constitutional power to create and regulate municipalities. It exists by statute, there being no provisions in the Mississippi Constitution of 1890 for such an office.

Now, if the office of Chief of Police of Mendenhall is an appointive office and an appointment to that office is made by lawful vote of the board of aldermen, then, affirming the previously expressed opinions, it is the opinion of this office that such appointment is not a measure, and, therefore, not subject to the mayor's veto power.

As a practical matter, the problem is one that is accurately described by Judge Griffin in his 1962 opinion: “...The whole question resolves itself into either a political or administrative matter and not one that may be solved by reference to a statute.”

Of course, the ultimate resolution of the particular matter is for the decision of a court of competent jurisdiction.

A general statement of the affect of an opinion of the Attorney General is set out thusly:

“... Advisory functions and opinions; construction or interpretation of law.

One of the most important duties of an attorney general, having its inception in the origin of the office or statutes declaratory thereof, is that of advising the executive and administrative heads of the government. In most jurisdictions statutes expressly imposed upon him the duty of the advising the chief executive and departmental heads upon questions of law touching their official duties. In the discharge of this function he acts in an advisory and ministerial, rather than a judicial, capacity, his opinion being for the information of the officer to whom it is rendered. While it may be persuasive, it is neither conclusive nor binding, and the recipient of it is free to follow it or not as he chooses.” 7 Am. Jur. 2d, Attorney General, Section 8.

By statute in Mississippi, appearing as Section 7-5-25 of the Code, the Attorney General is required, inter alia, to give his opinion, in writing, to certain listed officers of the government, including mayors and aldermen, when requested in writing upon any question of law relating to their respective offices.

This section states specifically what is the effect of such an opinion:

“...When any officer, board, commission, department or person authorized by this section to require such written opinion of the Attorney General shall have done so and shall have stated all the facts to govern such opinion, and the Attorney General has prepared and delivered a legal opinion with reference thereto, there shall be no liability, civil or criminal, accruing to or against any such officer, board, commission, department or person who, in good faith, follows the direction of such opinion and acts in accordance therewith unless a court of competent jurisdiction, after a full hearing, shall judicially declare that such opinion is manifestly wrong and without any substantial support. No opinion shall be given or considered if said opinion is given after suit is filed or prosecution begun.” (Emphasis Supplied)

In connection with the assumption by a person of the duties of the office of chief of police and the performance of such duties, certain ministerial and administrative acts may be required of the mayor. E. g., the approval of the chief's bond as provided in Section 21-21-1, supra, and the signing of the pay checks of the chief of police.

Should any municipal officer fail or refuse to do an act the performance of which the law specifically enjoins as a duty resulting from the office held by that official and there is no plain, adequate and speedy remedy in the ordinary course of law, then the Circuit Court of the appropriate district may be petitioned by the District Attorney or any interested private person under the provisions of Section 11-41-1, et seq., of the Code for a writ of mandamus commanding that official to perform the duty.

Your second question asked who may properly remove a duly elected chief of police and where this information is found in the Code.

If by “elected”, you refer to the appointment of a chief of police by lawful vote of the board of aldermen, then we are of the opinion that since the office of chief of police in a Code charter municipality is ordinarily an elective office under Section 21-3-3 of the Code, the appointment is for the term of office of the governing authorities. Consequently, such a chief of police could not be removed by a vote of the governing authorities.

The following are citations of constitutional and Code sections which are authority for the removal from office of any municipal public officer, whether appointed to municipal office or elected to such office by ballot in an election held for that purpose:

Section 175 of the Mississippi Constitution of 1890, which provides that all public officers, for willful neglect of duty or misdemeanor, may be indicted and upon conviction, removed from office.

Section 25-5-1 of the Code, which provides that if any public officer, state, district, county or municipal, should be convicted of misconduct or misdemeanor in office, of any felony or other infamous crime, of corruption in office or peculation therein, or of gambling or dealing in futures with money coming into his hands by virtue of his office, the court, in addition to other punishment prescribed, shall adjudge the defendant removed from office.

Section 11-39-1 of the Code, which provides that wherever any person unlawfully holds or exercises the functions of any public office, a remedy by information in the nature of quo warranto shall lie in the name of the state.

Section 21-39-1 of the Code, which provides for penalties for violation by municipal officers and employees of the section's prohibition against conflicts of interest which penalties include removal from office or employment.

There are no Code provisions for the removal from office of a municipal official by vote of the electorate aside from the electoral process of the regular primary, general and special elections.

We trust that the above will be of assistance to you.

With kind regards, I am

Very truly yours,

A. F. Summer Attorney General.