Mississippi Advisory Opinions August 13, 1986: 19860813 (August 13, 1986)

Advisory Opinion Text

Vacancy in Office

Mr. Glen D. Fortenberry

Pike County Circuit Clerk

716 West Bay

Magnolia, Mississippi 39652

Dear Mr. Fortenberry:

Attorney General Pittman has received your request for an opinion and has assigned it to me for research and reply. Your letter sets forth the following matter for consideration:

“Please advise me if I may submit a letter of resignation to the Board of Supervisors of Pike County, Mississippi to become effective on January 1, 1987. I would like to complete the current calendar year for retirement purposes. This letter of resignation would enable the Board to call the election for the regular election date of November 4, 1986 to fill the unexpired term beginning January 1, 1987 through January 3, 1988. Additionally, the successful candidate would have approximately six weeks to spend in this office to observe its operation and acquire knowledge and experience that would be of value when he begins his tenure.

In the event your answer is in the affirmative please advise the deadline to qualify as a candidate for the office of Circuit Clerk in the election to be held on November 4, 1986.”

Mississippi Code Annotated §§ 23-5-197 and 23-5-203 (Supp. 1985) are the controlling law concerning the filling of vacancies in elected county offices. For ease of reference, I am enclosing herewith a copy of the statutes.

You will note that the language of § 23-5-197 clearly contemplates that an actual vacancy shall have occurred as a condition precedent to implementation of the procedures called for. Accordingly, the board of supervisors will have no authority to appoint a replacement or order a special election until the vacancy has occurred. According to the scenario you have proposed, that vacancy would not occur until the effective date of your resignation on January 1, 1987.

If we can be of additional assistance on this or other matters, please do not hesitate to let us know.

Sincerely,

Edwin Lloyd Pittman, Attorney General.