Mississippi Advisory Opinions December 18, 1979: 19791218 (December 18, 1979)

Advisory Opinion Text

Honorable Sherrod Rayborn

Chancery Clerk

Lawrence County, Mississippi

Monticello, Mississippi 39654

Dear Mr. Rayborn:

Attorney General Summer has received your request for opinion and has referred it to the undersigned for research and reply.

You advise that the person who was certified by the Lawrence County Democratic Executive Committee to the Lawrence County Election Commission as the nominee of the Democratic Party for the office of Lawrence County Superintendent of Education withdrew as a candidate for said office in the General Election.

You then request ‘. . . advice as to the correct procedure that must be taken in order to fill the vacancy . . .’.

It is assumed that there were no other candidates for the office of County Superintendent of Education of Lawrence County in the General Election on November 6, 1979. The Democratic Nominee having withdrawn, therefore, no one appeared upon the ballot in the General Election for the office of County Superintendent of Education in Lawrence County. Therefore, since January 7, 1980, is the first Monday in January and is the date on which those county and county district officials who were elected at the November, 1979, General Election are required to be installed, since there was no one elected to the office of County Superintendent of Education at the General Election on November 6, 1979, a vacancy in said office will occur on January 7, 1980.

Section 37–5–75, Mississippi Code of 1972, Annotated, provides:

‘If a vacancy shall occur in the office of county superintendent of education, such vacancy shall be filled by appointment by the county board of education. If the unexpired term shall exceed six months, it shall be the duty of the board of supervisors of the county to call a special election to fill such vacancy for such unexpired term, which said election shall be called and held in the manner provided by Section 23–5–197. In such case the person so appointed by the county board of education shall hold office only until such election is held and the person elected there at shall qualify and enter upon the discharge of his duties.’

It is the opinion of this office, therefore, pursuant to the provisions of the above and foregoing quoted statute that the County Board of Education at its regular meeting on the first Monday and the seventh day of January, 1980, may enter an appropriate order finding a vacancy to exist in the office of County Superintendent of Education. However, since the unexpired term exceeds six months, the County Board of Education may temporarily fill the vacancy by temporary appointment, such appointee to serve until a special election can be called and held in conformance with Section 23–5–197, supra.

A certified copy of the order of the County Board of Education upon delivery to the County Board of Supervisors would, in the opinion of this office, provide a legal basis upon which the Board of Supervisors should ‘. . . make an order, in writing, directed to the commissioners of election, commanding an election to be held in the county . . . on a day to be named in the order, within sixty days, to fill the vacancy.’ See Section 23–5–197, supra.

The statute provides that the election commissioners shall give at least thirty days' notice of such election. However, Section 23–5–134, ibid, as appears in the 1979 Cumulative Supplement to Volume 6 of the Code, requires that a petition requesting a person to be a candidate in said special election for the office of County Superintendent of Education containing the names of not less than fifty qualified electors of Lawrence County be filed with the Election Commissioners not less than sixty (60) days prior to the date of the election.

It is to be seen, therefore, that the petitions of qualifying candidates should be filed with the County Election Commissioners on the same day of the adoption by the Board of Supervisors of the order calling for the election which is required to be held not more than sixty days from the date of the order. Also, notice of the election should be given by the Election Commissioners on the same day of the order of the Board of Supervisors calling for the election.

The requirement that the qualifying petition be filed with the County Election Commission on the same day as the adoption of the order of the Board of Supervisors should be given as wide publicity as possible so as to inform any potential candidate of the requirement. It would be appropriate for such information to be obtained at your office and the offices of County Superintendent of Education and Circuit Clerk. Perhaps, the local news media would consider it of sufficient general, news-worthy value and interest to publicize the information without charge.

Trusting the above and foregoing will constitute a complete response to your inquiry, I am

Very truly yours,

A. F. Summer Attorney General.

W. D. Coleman Deputy Attorney General.