Mississippi Advisory Opinions March 06, 2015: AGO 2015-00037 (March 06, 2015)

Advisory Opinion Text

AUTH: Leigh Triche Janous

RQNM: Jeffrey Levingston

SUBJ: Municipalities

SBCD: 142

TEXT: Jeffrey A. Levingston, Esq.

Attorney, City of Shelby

Post Office Box 1327

Cleveland, Mississippi 38732

Re: Validity of actions taken by board of aldermen

Dear Mr. Levingston:

Attorney General Jim Hood has received your request for an opinion and has assigned it to me for research and response.

Issues Presented

You inquire as to the validity of official actions taken by the municipality at its regular monthly meeting. Specifically, you provide the following:

I am writing to you in my capacity as attorney for the city of Shelby to request an expedited Opinion. By way of background, the board of aldermen has been embroiled in a controversy involving the termination or retention of the chief of police. You previously provided me with an Opinion, dated January 23, 2015, in reference to whether the mayor of the city could re-suspend the chief of police following his reinstatement by a majority vote of the board of aldermen. The issue now involves two (2) board factions. One faction, for termination, is represented by two aldermen and the mayor. The other faction, for retention, is represented by three (3) aldermen.

The board has always conducted its meetings according to an Agenda, and I am enclosing herein a copy of that Agenda for the regular February 3, 2015 meeting. Typically, aldermen make substantive motions during aldermen business. The only times, of which I am aware, when the Agenda has not been followed are in the instances of special called meetings to discuss personnel. In those instances, the meeting will be opened and the board will immediately go into executive session.

Usually, the regular monthly meeting, although scheduled for 7:00 p.m., starts at approximately 7:10 p.m. in order to allow for late arriving aldermen. On February 3, however, the meeting was called to order at precisely 7:00 p.m. At that time, it was announced that one of the aldermen (favoring retention of the Chief of Police) was in route and would be at the meeting momentarily. After the meeting was begun, but prior to the arrival of the absent alderman, roll was called, and a prayer was offered. Immediately after the prayer, one of the two (2) aldermen favoring termination made a motion to terminate the chief of police, which was then seconded. The vote was called and the two (2) aldermen voted in favor of termination. The other two (2) aldermen refused to vote on the basis that the Agenda was not being followed, and further on the basis that the vote was being called prematurely in order to avoid the presence of an alderman who would vote against termination. The mayor treated this as two abstentions and carried the motion to terminate. Following the vote, I was asked for an opinion, which was that the Agenda should be followed. (Robert's Rules of Order provides that where an Agenda is set, then any deviation from the Agenda requires a suspending of the Rules. There was no such suspension from the Rules in this case). Subsequently, the alderman who had been absent, arrived at the meeting, and a motion was made, seconded, and voted upon to reinstate the chief of police.

I am requesting an Opinion as to whether the initial vote to terminate the chief of police is, or is not, valid.

Response

This office is not authorized to address actions that have already been taken by the municipality, pursuant to Mississippi Code Annotated Section 7-5-25. An opinion from this office can neither validate nor invalidate any such past actions. However, we are enclosing copies of official opinions previously issued by this office which may be of benefit to you.

If we may be of further assistance, please advise.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Leigh Triche Janous, Special Assistant Attorney General.

Office of the Attorney General State of Mississippi

Opinion No, 2008-00437

August 29, 2008

Re: Mayor's authority

Mr. Johnny Magee

Councilman

City of Laurel

P.O. Box 647

Laurel, MS 39441

Dear Councilman Magee:

Attorney General Jim Hood received your request and assigned it to me for research and response.

Issue Presented

Does a reduction in weekly garbage collection from two days to one days have to be approved by the city council?

Response

Since your request involves a past action, we are unable to respond with an official opinion. For informational purposes and future guidance only, we offer the following information. Absent a pre-existing ordinance requiring garbage collection two days a week, or a pre-existing contract with a third-party requiring garbage collection two days a week, there is no requirement that a reduction in the number of days of garbage collection be approved by the city council.

Background

On August 4, 2008 garbage pickup in the City of Laurel was reduced from two days a week to one day a week without any action of the city council.

Applicable Law and Discussion

Since your request involves a past action, we are unable to respond with an official opinion. Pursuant to Section 7-5-25 of the Mississippi Code, this office can only issue official opinions on matters involving prospective actions. An official opinion will not validate or invalidate a past action. For informational purposes and future guidance only, we offer the following information.

Section 21-8-17 of the Mississippi Code provides in part:

(1) The mayor shall enforce the charter and ordinances of the municipality and all general laws applicable thereto. He shall annually report to the council and the public on the work of the previous year and on the condition and requirements of the municipal government and shall, from time to time, make such recommendations for action by the council as he may deem in the public interest. He shall supervise all of the departments of the municipal government and shall require each department to make an annual report and such other reports of its work as he may deem desirable. No member of the council shall give orders to any employee or subordinate of a municipality other than the council member's personal staff.

(Emphasis added).

Conclusion

Absent a pre-existing ordinance requiring garbage collection two days a week, or a preexisting contract with a third-party requiring garbage collection two days a week, there is no requirement that a reduction in the number of days of garbage collection be approved by the city council. Such reduction may be made by the mayor pursuant to the mayor's supervisory duties over all municipal departments, including the public works department.

Very truly yours,

Jim Hood, Attorney General

Chuck Rubisoff, Special Assistant Attorney General

Opinion No. 2012-00314

June 29, 2012

Re: Rescission of vote by board of aldermen

Monique Brooks Montgomery, Esq.

Attorney

Town of Brooksville

814 Second Avenue North

Columbus, MS 39701

Dear Ms. Montgomery:

Attorney General Jim Hood has received your request for an opinion and has assigned it to me for research and response.

Issues Presented

You inquire as to whether a municipality should retain a newly hired police officer based upon parliamentary procedure and/or Roberts Rules of Order. Specifically, you provide the following:

Please inform us on whether we are to retain the newly hired police officer according to the parliamentary procedure and/or Robert's Rules of Order or should she be terminated based on violations of parliamentary procedure and/or Robert's Rules of Order according to municipal hoard meetings?

During the April 17, 2012, board meeting, the board members present voted to hire a new employee (Police Officer). During the May 1st board meeting, board member David Boswell motioned to rescind the hiring of the new police officer. Once the motion was applied to a vote, the minutes reflect that only three (3) members voted. Curtis Bush voted for the rescission, Freda Phillips voted against the rescission and A.E. Williams voted against the rescission. The remaining two (2) members did not voice a vote. Pursuant to Robert's Rules of Order, an abstention is the same as a "No" vote. Therefore, the motion to rescind the hiring of the new employee was lost.

The new police officer was hired on April 17, 2012, Two (2) board members are now requesting that the new employee be terminated because they feel that since they made the motion and seconded to rescind her hiring then their vote should have been automated yes to rescind her employment, even though they were silent when the mayor called for the vote.

Response

In response to your inquiry, opinions of the Attorney General are issued on questions of law for future guidance of those officials entitled to receive them and can neither validate nor invalidate past action. Therefore, to the extent that your request deals with a past action, requires this office to make a factual determination or interpret rules of order, we must decline to respond with an official opinion of this office. However, by way of information only, we make the following comments for your future guidance.

An alderman does not implicitly cast his/her vote, simply by' making or seconding a motion. The alderman is still required to cast his/her vote when the vote is called for by the mayor.

Applicable Law and Discussion

We are not aware of any statutory law, nor case law, which dictates the procedure in which a municipality must follow when conducting its meetings. We have previously opined that, as a result of such absence, general parliamentary procedure would apply. MS AG Op., Seal (July 2 With respect to the rules of order, this office is not authorized to interpret the rules of order, as we are authorized to issue official opinions only on matters of law. MS AG Op., Fitzpatrick (November 16, 2007); MS AG Op., Kopf (July 29, 2005). However, generally, we have provided that it is appropriate for a municipality to adopt its own regulations and rules of procedure when such is not prescribed in statute or m the municipality's charter provision and that general parliamentary law prevails. MS AG Op., Harvey (February 17, 1987); MS AG Op. Barry (October 21, 1992). The interpretation of the municipal regulations and rides of procedure are best left to the governing authorities, subject to review by a court of competent jurisdiction.

Absent any special rule or procedure adopted by the governing authorities, when a quorum is present and a vote is taken upon a properly moved proposition, and one or more members abstain from voting on such proposition, the effect is the same as if those who abstained had voted on the prevailing side. MS AG Op., Kramer (April 11, 2008); MS AG Op., Lawrence (August 10, 2007); MS AG Op., Senko (October 26, 1990).

Whether the action taken by the municipality, as described in your request, complied with the municipality's procedures is a factual determination to be made by the governing authorities. Pursuant to Mississippi Code Annotated Section 25-41-11 any final action, including a record, by individual, of any votes taken is required to be reflected in the minutes. An alderman does not implicitly cast his/her vote simply because he/she made a motion or seconded a motion. The alderman is still required to cast his/her vote when the vote is called for by the may- or.

If our office may be of further assistance, please advise.

Sincerely,

Jim Hood, Attorney General

Leigh Tricke Janous, Special Assistant Attorney General

Opinion No. 2006-00539

November 10, 2006

Re: Board Meetings (Public Input)

William W. Smith. Esquire

Attorney for City of Booneville

Post Office Box 961

Booneville, Mississippi 38829-0961

Dear Mr. Smith:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply. Your letter states:

As attorney for the City of Booneville, I have been instructed by Hon. Betty Livingston, one of the members of the Board of Aldermen to request an official opinion from your office.

In order to assure that the question which Ms. Livingston desires to be answered is correct, the following is the exact language that Alderwoman Livingston has instructed me to request an opinion on:

"The Mayor is not following the pre-published agenda, he brought up a subject that wasn't on the agenda therefore according to Robert's Rules the public should be allowed to speak on the subject.

I want to know if the public has the right to address things brought up in an open meeting if it wasn't on the agenda." By way of explanation, at a recent City Board meeting after concluding with the published agenda, the Mayor discussed some issues with the Board which were of concern to him and the members of the Board of Aldermen participated in the discussion. No vote or action was required nor was any vote or action taken and at the conclusion of the discussion, a member of the public in the audience requested permission to address the Board on the issues discussed by the Mayor and Board. The Mayor declined the request due to the previous policy of the Board that citizens desiring to address the Board are required to make that request in writing and be placed on the agenda and this individual was not on the agenda nor was the issues discussed by the Mayor with the Board.

In response to the specific question we find no legal authority that bestows a right on citizens to address matters at meetings of municipal governing authorities. However, we have previously said that the mayor has the responsibility to preside over the meetings and insure that each meeting proceeds in an orderly manner. The orderly conduct of any meeting of the mayor and board of aldermen Is left to the sound discretion of those office holders. They may, but are not required to, allow concerned, persons to address the meeting. In the alternative, the governing authorities may, but are not required to, receive and consider comments or petitions in writing. MS AG Op., Boggs (Sept. 1, 2006).

Sincerely,

Jim Hood, Attorney General

Phil Carter, Special Assistant Attorney General

Opinion No. 2004-0390

August 6, 2004

Re: Authority of Mayor; Agenda; Supervision of City Clerk

Mayor Mary Young

Town of Kilmichael

Post Office Box 296

Kilmichael, Mississippi 39747

Dear Mayor Young:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. You present several basic questions to us fox consideration. First, you ask what authority the Mayor has to control matters appearing the agendas for meetings. Second, you ask whether the Board of Aldermen can allow the City Clerk to report to the Board during meetings as a Department Head. Finally, you inquire as to the Mayor's authority over the City Clerk when the Clerk refuses to honor the Mayor's request to be provided with all information being placed on the agenda in a timely fashion.

The Town of Kilmichael operates under a mayor-alderman form of municipal government, and therefore, is controlled by Section 21-3-1 et seq. of the Mississippi Code. In response to your first question, the mayor under this form of government has the responsibility to preside over meetings and to insure that each meeting proceeds in an orderly manner. Miss. Code Ann. Section 21-3-15; MS AG Op., Parham (August 10, 2001). It is the responsibility of the city clerk to keep the municipal agenda. Miss. Code Ann. Section 21-15-19. The mayor does not have the sole right to remove matters from the agenda, or to establish the order of the agenda, or to control the manner in which the agenda is developed, in that a majority of the board of aldermen control the agenda. MS AG Op., Belk (January 16, 2004). Any policy adopted by a majority of the board with regard to the maintenance of the agenda and the manner in which items are placed on the agenda would be controlling. Even in the absence of a policy, if a majority of the board approve the agenda, its decision is controlling. Both the mayor and members of the board have the authority to place items on the agenda of a municipal meeting. The mayor and aldermen have the right to review the agenda at any time prior to the meeting in order to prepare for the meeting. MS AG Op., Stovall (January 6, 2004). Any affirmative action of the board of aldermen is subject to mayoral veto. Miss. Code Ann. Section 21-3-15; MS AG Op„ Brown (July 1, 2004).

This office has recognized the position of an appointed city clerk as a department head. MS AG Op., Martin (November 7, 1997). The mayor exercises "superintending control" over municipal employees and affairs, and this includes supervisory authority over department heads. Miss. Code Ann. Section 21-3-15. The board of aldermen does not have the authority to direct the daily activities of the clerk. MS AG Op., Baker (November 1, 1995). However, by majority vote, the board may allow the city clerk to address the board at a meeting, just as the board may allow any member of the public or municipal employee to address the body.

*2 Finally, as stated above, as a department head, the city clerk is subject to the supervision of the mayor. If the clerk refuses to provide to the mayor information related to the agenda, after being asked to do so, the clerk may be disciplined in accordance with policies adopted by the governing authorities. The board has no authority to become involved in the day-to-day operations of the clerk's office or otherwise interfere with the supervisory authority granted to the mayor by Section 21-3-15. MS AG Op., Baker (November 1, 1995). Sole authority to remove the clerk from office or to suspend the Clerk without pay lies with the Board.

If our office may be of further assistance, please advise.

Sincerely,

Jim Hood Attorney General

Heather P. Wagner Assistant Attorney General

Opinion No. 2009-00485

August 4, 2009

Re: Municipal Appointments

The Honorable Ella Edwards-Benson

Alderman, City of Lexington

423 6 Street

Lexington, Mississippi 39095

Dear Ms. Edwards-Benson

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Issues Presented

We understand your questions to be: 1) Does the mayor of a code charter municipality have the authority to recommend an individual for appointment as municipal cleric or police chief to the board of aldermen without advertising the position in a newspaper; 2) May the municipal governing authorities, in a regular meeting, take action on a matter that is not on the printed agenda; and 3) Is there a law that prohibits the mayor from suggesting whom to vote for in an election on the basis that the voters' homes were built with a CDBG Grant?

Background

You state that one person was recommended by the mayor for appointment as city clerk and that person was appointed by a vote of three to two by the aldermen. You further state that the agenda for the August 4, 2009 board of aldermen meeting did not include the hiring of a police chief and that some interviews were conducted by the mayor and three of the five aldermen without the knowledge of the other two aldermen.

Preface

We preface our responses by stating that to the extent that these are matters already acted on by the municipal governing authorities we must decline to offer an official opinion. Pursuant to Mississippi Code Annotated Section 7-5-25 (Revised 2002) opinions of the Attorney General are issued on questions of law for the future guidance of those officials entitled to received them. An Attorney General's opinion can neither validate nor invalidate past action of governing authorities. By way of information only we offer the following comments.

Comments

The mayor of a code charter municipality has the authority to recommend to the board of aldermen an individual for appointment to a vacant municipal position without advertising the vacancy in a newspaper. We assume that any and all meetings regarding this matter were conducted in accordance with the open meeting statutes. We know of nothing that would prohibit municipal governing authorities from taking up a matter in a regular meeting that is not on the printed agenda.

Our response to your third question is No. However, should a mayor go beyond normal campaigning and engage in intimidation or coercion in attempting to persuade voters to vote for a particular candidate or group of candidates by using threats, he or she could possibly be subject to prosecution pursuant to Section 97-13-37. It provides:

Whoever shall procure, or endeavor to procure, the vote of any elector, or the influence of any person over other electors, at any election, for himself or any candidate, by means of violence, threats of violence, or threats of withdrawing custom, or dealing in business or trade, or of enforcing the payment of a debt, or of bringing a suit or criminal prosecution, or by any other threat or injury to be inflicted by him, or by his means, shall, upon conviction, be punished by imprisonment in the county jail not more than one year, or by fine not exceeding one thousand dollars, or by both.

Sincerely,

*2 Jim Hood, Attorney General

Phil Carter, Special Assistant Attorney General

Opinion No. 2010-00650

December 10, 2010

Re: Municipal attorney appointment

Mildred LeSure, Esq.

Attorney, town of Coldwater

Post Office Box 541

Senatobia, MS 38668

Dear Ms. LeSure:

Attorney General Jim Hood has received your request for an opinion and has assigned it to me for research and response.

Issues Presented

You inquire as to the authority of a mayor to adjourn a meeting of the governing authority and the authority of a board of aldermen to authorize payment of a claim without the approval of the mayor. Specifically, you provide the following:

I am the attorney for the Town of Coldwater. I was asked by several of the Board members to ask for an Attorney General's Opinion on the following issue:

The mayor for the Town of Coldwater has advocated the non reappointment of the Town attorney, "being myself. He says that it was a recommendation that was passed along with the budget and therefore I was no longer the attorney for the Town. Several of the aldermen disagreed with this interpretation but he refused to entertain or allow them to speak. He also refused to pay me for the month of October. At the November meeting, he again refused to allow discussion of the matter. He tried to adjourn the meeting but the aldermen refused to adjourn and the Mayor left the meeting. The board then went into executive session and reappointed me as town attorney. The Mayor now says that the action was not valid because he had adjourned the meeting. He has also stated that I will not receive any payment as town attorney. Can the mayor adjourn a meeting and refuse to allow the Board to conduct business? Are the actions of the Board valid in this matter and can they authorize payment to the attorney without the Mayor's approval?

Response

With respect to Hie validity of the actions of the board, opinions of the Attorney General are issued on questions of law for future guidance of those officials entitled to receive them and can neither validate nor invalidate past action. Therefore, to the extent that your request deals with a past action or requires a factual determination, we must decline to respond with an official opinion of this office and make the following comments.

No, a mayor may not unilaterally adjourn a meeting of the hoard of aldermen and may not use his statutory duty to "preside" over board meetings to prevent the board of aldermen from considering discussing and voting on matters that clearly fall within the legislative branch of a municipality.

Yes, payment to the city attorney may be authorized by the board of aldermen as a lawful claim that has been approved for payment. Checks for claims authorized by the board may be signed by either the mayor or a majority of the members of the board of aldermen pursuant toSection21-39-13.

Applicable Law and Discussion

A mayor has the statutory responsibility to preside over meetings of the governing authority to ensure that each meeting proceeds in an orderly and efficient manner. MS AG Op., Honnoll (August 13, 2010). This authority to "preside" is, in no way, an absolute right of the mayor to control the meeting in such a way that aldermen are prevented from bringing up a matter for discussion and vote. A mayor must recognize an alderman who desires to make a motion on a matter which falls within the duties or the board of aldermen. MS AG Op., Bradley (July 10, 2006). A mayor may not adjourn a meeting simply to prohibit a board of aldermen from voting on a matter that he is in disagreement with or does not support. The determination of whether a meeting should be adjourned or not is a matter that falls within the authority of the board of aldermen, not the mayor. MS AG Op., Slocum (October 29, 2010).

*2 Any expenditure made to compensate the municipal attorney for his services must be examined and approved for payment by the board of aldermen, pursuant to Section 21-39-17. There is no statutory mandate requiring the approval of the mayor on the payment of claims by the governing authority. Such approval rests solely with the board of aldermen. See MS AG Op., Crider (August 20, 2010) (all lawful claims must be approved by the board of aldermen); MS AG Op., Belk (July 2, 1999) (assuming that the contract for services was previously authorized by the board of aldermen, it has the authority to pay an invoice). "We assume, for the purposes of this opinion, that there is no municipal procedure that requires the approval of the mayor of a claim before it is submitted for payment. Therefore, the board may make a determination to pay a valid and properly approved claim., regardless of the approval of the mayor. Once the board has properly approved the claim, a check may be issued and signed by a majority of the members of the hoard or by the mayor, pursuant to Section 21-39-13. MS AG Op., Hatcher (July 19, 1996).

If we may be of further assistance, please advise.

Sincerely, Jim Hood, Attorney General

Leigh Triche Janous, Special Assistant Attorney General

Opinion No. 2006-00287

July 10, 2006

Re: Actions of Municipal Officials

The Honorable Alberta Bradley

Alderman, Ward 3

Post Office Box 37

Crenshaw, Mississippi 38621

Dear Ms. Bradley:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply. A copy of your letter is attached for reference.

You state that the Town of Crenshaw has been struggling with limited finances particularly with the 2004 closing of a factory which had been the major employer. You then describe six (6) problem areas on which you seek our opinion.

All of the problem areas deal with actions that have already been taken by the mayor and/or the board of aldermen. Pursuant to Mississippi Code Annotated Section 7-5-25 (Revised 2002), opinions of the Attorney General are issued on questions of law for the future guidance of public officials entitled to receive them. An Attorney General's opinion can neither validate nor invalidate past action of an officer or agency. Therefore, we must decline to respond to your request with an official opinion. However, we will make unofficial comments on each of the problem areas in the order presented.

First: After just 30 days in office he (the Mayor) got the three necessary votes to raise the salaries for mayor and aldermen. That would be fine except the Town was in debt when he took office and is still in debt a year later. Alexander vs Edwards was brought to our attention by a citizen but never discussed in a Board meeting. Response: In our opinion to Mayor Jesse Greer dated January 12, 1994 we said: The Mississippi Supreme Court has also spoken to this question in Alexander v. Edwards , 220 Miss. 699, 71 So.2d 785 (1954):

We hold that the governing authorities of municipalities operating under a code charter have lawful authority to raise their salaries during their term of office.... If the governing authorities had acted, in bad faith, or if the salary increase had been an arbitrary or unreasonable one in relation to the resources of the town and the duties of the offices, then the Court would exercise its supervisory power to correct such abuse....

Second; He (the mayor) refuses to follow normal parliamentary procedure in conducting board meetings. Example, he totally controls the agenda. Aldermen are not given copies until we arrive at the meeting. If an alderman hies to bring up an item before he is ready it is ignored. Example from this month's meeting; Alderman A raises his hand and is acknowledged by the chair "I make a motion....; Alderman B "I second it" the chair ignores it. The motion is made and seconded again, the mayor simply continues with his train' of thought. Alderman A says "Mr. Mayor I have a motion with a second on the table that calls for a discussion" his response was "I'm withdrawing that motion." Example; at 10:15 P.M. he simply declared the meeting over. No motion to adjourn; just over, get up and leave while some of us felt there were matters that still needed our attention. This month he withheld one persons's job application from the board's consideration while submitting two others.

*2 Response: In our opinion to Mr. Quinn Parham dated August 10, 2001 we said:

As an elected official each alderman has the right to full participation in the conduct of city business and should not he denied access to the agenda as long as his or her request is timely made. MS AG Op., Kendrick (July 3, 2001); MS AG Op., Childre (September 28, 1994); MS AG Op., Allen (February 17, 1987). The mayor has the responsibility to preside over the meetings and to insure that each meeting proceeds in an orderly and efficient manner. MS AG Op., Alyse (December 7, 1994). The mayor must recognize an alderman who desires to make a motion on a matter which falls within the duties of a board of aldermen; the mayor may not use the statutory duty to preside at meetings set forth in Section 21-3-15(1) to prevent the board of aldermen from bringing up for discussion and voting upon any matter which falls within the authority of the legislative branch of a code charter municipality.

Third: We've had numerous complaints from residents to have certain ordinances enforced such as cleaning private property (we adopted MCA 21-19-11), our dog ordinance, trash blocking public walkways, etc. He (the mayor) refers such things to the Town Attorney (we're on our third one since last July) or states "we'll look into it." I'm attaching a copy of his response one resident waited months to receive.

Response: We have previously said that matters dealing with the day-to-day operations of the police department, or which deal with the performance of law enforcement duties are solely within the purview of the police chief and police department. MS AG Op., Barton (March 23, 2006). However, we note that in regard to Section 21-19-11 there is a very specific procedure that the governing authorities (mayor and board of aldermen) must follow in requiring property owners to clean their property" If a property owner fails to clean his property, the governing authorities are authorize to have the property cleaned and assess the cost and penalties that becomes a civil debt against the property owner or a civil debt against the property. Such civil debt may be collected by the filing of a lawsuit or if the governing authorities do not declare that the cost and any penalty shall be collected as a civil debt, the assessment shall be a lien against the property and may be enrolled in the office of the circuit clerk as other judgments are enrolled, and the tax collector of the municipality shall, upon the order of tire governing authorities, proceed to sell the land to satisfy the hen as now provided by law for the sale of land for delinquent municipal taxes.

Fourth: When our Town Clerk (our second since July) was still new she mistakenly issued a permit tor a mobile home to be brought into town in violation of our trailer ordinance. The Mayor refused to address the matter in a timely fashion (see attachment # 1) stating nothing could be done so I called your office and was advised that a permit, especially one issued in error, did not take precedence over the ordinance. Since mat time two -residents have gone to two different local attorneys that also said the ordinance controls.

*3 Response: The town may revoke an erroneously issued permit. Whether the revocation of such permit would incur liability is a question of fact which involves mixed issues of law and fact which can only be resolved by a court of competent jurisdiction.

Fifth: The Mayor's use of "executive sessions" has gotten to the point I fear it may be being abused. Reasons he's using are "for personnel matters and other items", "personnel matters" when all we are doing is interviewing an attorney for the position of Town Attorney or deciding whether or not to hire a new employee. Once in executive session the session's scope is broadened. The local newspaper reporter as well as citizens present object but he convinces three board members to go along with closing the meeting so the public has to wait outside for almost two hours at times. Once he came out of executive session and concluded the meeting telling the people waiting outside we were back in open session. This month, however, when he requested an executive session as soon as the Board meeting was called to order it failed by one vote. It is starting to look like it is being used as a tactic to have the public excluded from observing our meetings. Also, for many years our Town has always allowed citizens to address us at the beginning of board meetings within reason. The mayor started a policy of requiring people who wish to speak to fill out a form (see attachment #2) and meet with him first to see if he trunks they need to address the board. He only allows three people to speak for five minutes and is talking about reducing that time to three minutes. The citizenry considers that censorship.

Response: Please see the enclosed copy of our opinion to Diane Stewart dated August 22, 1991. In that opinion we cited Hinds County Board of Supervisors v. Common Cause , 551 So.2d 107 (Miss. 1989) and said:

The Court noted that the stated reason for going into executive session must be specific, concrete and identifiable as one to the matters allowed for executive session: The reason given, of course, must be meaningful. It must be more than some generalized term which in reality tells the public nothing. To simply say, "personnel matter, " or "litigation, " tells nothing. The reason stated must be of sufficient specificity to inform those present that there is in reality a specific, discrete matter or area which the board had determined should be discussed in executive session.

Upon majority vote the meeting is closed. The board then is permitted to discuss whether or not to go into executive session, but no other business than this particular matter may then be discussed. Miss. Code Ann. Section 25-41-7(2). If a three-fifths majority of the board votes to go into executive session, the chairman must then re-open the meeting and announce publicly that the board Is going into executive session, and give the reason for doing so. Miss. Code Ann. Section 25-41-7(3), (5).

*4 The board of aldermen has the authority to control meetings by majority vote. If the Board wants to allow citizens speakers five (5) minutes, it may. A board meeting cannot adjourn without agreement of a majority of the board. If the mayor leaves, a quorum of the board may continue the meeting with the mayor pro tern or other board member presiding.

Sixth: As art example of what is considered superintending control see attachment #3. This letter was brought about as a cost saving idea. I suspect the high lighted part may not be legal. It definitely is causing grave concern with our citizens and hindering our police force. That and a Crenshaw marked police car he lent to a neighboring town. Our police chief was not informed and thought it had been stolen.

Response: Attachment #3 is a letter from, we assume, a municipal judge to the mayor, police chief and police officers stating that no person is to be locked up without notification of the judge and/or the mayor and that no warrants should be served unless the judge has properly signed off on them.

Again, matters dealing with the performance of law enforcement duties are solely within the purview of the police chief and police department. For future guidance, the notification of a municipal judge or the mayor is not a prerequisite to the incarceration of a person who has been properly arrested.

Sincerely,

Jim Hood, Attorney General

Phil Carter, Special Assistant Attorney General

Opinion No. 2012-00242

May 22, 2012

Re: Rescission of an order

Gary L. Austin, Esq.

Attorney

City of Indianola

Post Office Box 1590

Indianola, Mississippi 38751

Dear Mr. Austin:

Attorney General Jim Hood has received your request for an opinion and has assigned it to me for research and response.

Issues Presented

You inquire as to whether a governing authority may rescind an order and, if so, whether the mayor may veto such rescission. Specifically, you ask the following:

As Attorney for the City of Indianola, . 1 have been asked to request an opinion of your office concerning the following issues:

The Board of Aldermen terminated an employee approximately one month prior to a meeting at which a motion was made and passed to rescind the termination. The employee had drawn his final pay; check, was paid for unused vacation time and returned to the city all its equipment. The minutes regarding termination had been approved. May the board rescind the termination or must it rehire the employee? If rescission is proper, may the mayor veto the rescission?

Response

A governing authority may reconsider any action taken by it, provided that the reconsideration does not impair contractual obligations already entered into by the board or work to the harm or detriment of those legally entitled to rely on and actually relying on the board's previous action. In this case, a vote to rescind the fascination of the referenced employee would be equivalent to a vote to rehire said employee. Furthermore, the mayor may veto an action to rescind a previous vote by the board of aldermen, as he/she is authorized to veto any action of the board of aldermen, other than a negative one.

Applicable Law and Discussion

We have consistently opined that a governing authority may reconsider any action taken by it "so long as the reconsideration does not impair contractual obligations already entered into by the board or work to the harm or detriment of those legally entitled to rely on and actually relying on the board's previous action. "MS AG Op., Thomas (July 30, 2010); MS AG Op., Lawrence (August 10, 2007); MS AG Op., Keyes (December 12, 1997); MS AG Op., Spragins (March 1, 1994).

"With respect to the veto authority of a mayor, it is well-settled that a mayor may veto any action of the board of aldermen, except for a negative vote. MS AG Op., Butler (October 25, 2011); MS AG Op., Tucker (October 26, 2007). A vote to repeal, rescind or reconsider a previous action is a positive vote and can be vetoed by the mayor.

If our office may be of farther assistance, please advise.

Sincerely

Jim Hood, Attorney General

By: Leigh Triche Janous, Special Assistant Attorney General

Opinion No. 2012-00245

May 21, 2012

Re: Jefferson County Hospital Board of Trustees — rescind or change votes

Deborah McDonald

Attorney

Jefferson County Hospital

P.O. Box 2038

Natchez, MS 39121-2038

Dear Ms. McDonald,

Attorney General Jim Hood has received your opinion request and has assigned it to me for research and reply.

INQUIRIES

1. Whether there is any statutory authority for a member of a board of a public entity to change or reverse a vote after the board meeting has adjourned but prior to the adoption of the minutes of that meeting?

2. Whether a member of the Board of Trustees of a county-owned hospital or nursing home may reconsider and change his or her vote, including abstentions, after the meeting has adjourned but prior to adoption of the minutes?

ANALYSIS

You cite several prior opinions in your request letter in which we discussed the ability of a member of a governmental board to change his prior vote. In MS AG Op., Home (August 21, 1979), we were asked whether a member of a municipal governing authority could change his vote on a matter upon which he voted after the minutes of that meeting had been completed and signed as required by law. We opined:

At any time before a regular meeting is adjourned and the minutes recording such meeting have been completed and signed as required by law, the governing authorities of the City of Jackson could permit a reconsideration of a matter voted upon and another vote on such matter. Subsequent to adjournment and authentication of the minutes, a Commissioner could not chan g e his vote as recorded in such minute s. The vote resulting in a judgment or decision of the City Council would be final subject to the right of appeal by Bill of Exceptions to the Circuit Court as granted by Section 11-51 -75 of the Mississippi Code of 1972, Annotated.

At a subsequent meeting of the City Council, the identical matter could be considered as new business and a Commissioner could then be given an occasion for changing his vote from that recorded at a previous meeting. However, the result of such a vote change may be, depending upon the result, subject to intervening rights of third persons that have arisen.

In MS AG Op., Kramer (April 11, 2008), we noted that under general rules of parliamentary procedure, a member is prohibited from changing his vote on a motion after the vote has been made and the result announced. However, we pointed out that if the issue presents itself again in the form of a new motion or a motion to reconsider, the member is not hound by his previous vote.

Similarly, in MS AG Op., King, (October 11, 1990) we opined:

We find no statutory authority for an alderman to rescind or change his/her vote after a vote has been taken and a meeting adjourned. In addition to circumventing the purposes of the Open Meetings Act, a policy which would allow an alderman to change a vote after a meeting has been adjourned would prohibit finality in actions the board takes.

*2 Thus, the issue of whether a board member individually may change his vote is different from the question of whether the board as a whole can reconsider a matter. The individual member may not simply change his mind and ask that his vote be changed. The latter scenario, on the other hand, is always proper, so long as rights of third parties are not affected. When asked whether the board as a whole — not an individual member — may change its vote on a matter, we stated:

[W]e have consistently opined that a board may reconsider any action previously taken by it, "so long as the reconsideration does not impair contractual obligations already entered into by the board." MS AG Op., Lawrence (August 10, 2007); MS AG Op., Keyes (December 12, 1997); MS AG Op., Sprains (March 1, 1994). In the Keyes opinion, we further provided that reconsideration may take place, provided that such reconsideration does not impair any contracts entered into by the board or "... work to the harm or detriment of those legally entitled to rely on and actually relying on the board's previous action." Thus, to the extent that the citizen you reference will not be harmed by the board's rescission of its order, the board may reconsider its previous order on the subject matter.

MS AG Op., Thomas (My 30, 2010).

Thus, in response to your first question, a member of a board of a public entity cannot change or rescind his vote on a matter voted upon unless the matter is presented again to the board for a vote on a new motion, such as motion to reconsider. This can be done at any time, either prior to adjournment of the meeting or at any subsequent meeting, even after approval of the minutes, but the ability of the board to change its course on a matter may be limited by any intervening rights of third parties.

Your second question is essentially the same as the first, but is specifically addressed to authority of a member of the board of trustees of a hospital. Since there are no statutes which specifically address the voting procedures of members of boards of trustees of community hospitals, our response to question 1 would apply to hospital hoards of trustees.

If this office may be of further assistance to you, please let us know.

Sincerely,

Jim Hood, Attorney General

Ellen O'Neal, Special Assistant Attorney General

Opinion No. 2010-00403

My 30, 2010

Re: Rescission of vote

Aelicia L. Thomas, Esq.

Attorney, Town of Pace

Post Office Box 912

Rosedale, MS 38769

Dear Ms. Thomas:

Attorney General Jim Hood has received your request for an opinion and has assigned it to me for research and response.

Issues Presented

You inquire as to whether a board of aldermen may rescind its vote. Specifically, you ask the following:

The Board would like to know whether they can rescind their vote.

On June 2, 2010, the hoard approved the request of a citizen to move a mobile home camper onto her property. After said meeting, the Board was reminded that on September 4, 2003, they designated certain streets for mobile homes to he located; Jenny Washington is not one of those streets (the street on which the camper would be placed). So, can the board rescind its June 2, 2010, vote to allow this camper, now having been reminded that it violates a city ordinance?

Response

Yes, we have consistently opined that a board may reconsider any action previously taken by it, "so long as the reconsideration does not impair contractual obligations already entered into by the board. "MS AG Op., Lawrence (August 10, 2007); MS AG Op., Keyes (December 12, 1997); MS AG Op., Sprains (March 1, 1994). In the Keyes opinion, we further provided that reconsideration may take place, provided that such reconsideration does not impair any contracts entered into by the board or "...work to the harm or detriment of those legally entitled to rely on and actually relying on the board's previous action. "Thus, to the extent that the citizen you reference will not be harmed by the board's rescission of its order, the board may reconsider its previous order on the subject matter.

If our office may be of further assistance, please advise.

Sincerely,

Jim Hood, Attorney General

Leigh Triche Janous, Special Assistant Attorney General

Opinion No. 2007-00410

August 10, 2007

Re: Authority of mayor pro tempore to sign municipal checks

Mr. Bill Lawrence

Mayor

Town of Caledonia

Post Office Box 100

Caledonia, Mississippi 39740

Dear Mayor Lawrence:

Attorney General Jim Hood has received your request for an opinion and has assigned it to me for research and response. Your letter reads as follows:

At our July 3 Board Meeting, we discussed a project for our Water Department. A motion was made and seconded to approve the project. The vote was two yes and two no. One Board Member stated she did not know enough about the project to vote and did not want to vote.

The Board Attorney advised the Board Member she would have to vote; that she could not abstain. Is this proper? If this is not proper, can we go back and take the two-two vote and the Mayor break the tie?

In response to your inquiry, opinions of the Attorney General are issued on questions of law for future guidance of those officials entitled to receive them and can neither validate nor invalidate past action. Therefore, to the extent that your request deals with a past action, we must decline to respond with an official opinion of this office. However, by way of information only, we make the following comments for your future guidance.

In response to your inquiry regarding abstention of a board member, a board member may abstain in any vote as necessary. In the event that a board member abstains in a vote, the abstention is counted as with the majority. MS AG Op., Tanner (February 14, 2003). However, if an abstention occurs with a tie vote, the abstention is not counted. MS AG Op., Wolfe (January 26, 2001). In that event, pursuant to Miss. Code Ann. Section 21-3-15(1), the mayor may vote to break the tie. MS AG Op., Simpson (January 31, 1997).

As to your inquiry regarding reconsideration of the matter, please see MS AG Op., Spragins (March 1, 1994), wherein we opined that a board may reconsider any action taken by them "so long as the reconsideration does not impair contractual obligations already entered into by the board."Thus, to the extent that a reconsideration of the item would not result in an impairment to any contractual obligation of the municipality, the item may be reconsidered, if the board so desires.

If our office may be of further assistance, please let us know. A copy of the above referenced opinions have been provided for your review.

If our office may be of further assistance, please advise.

Sincerely,

Jim Hood Attorney General.

Leigh Triche Janous, Special Assistant Attorney General.

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Notes:

Although Mr. Eric Dooley was present at the board meeting, he exited the board meeting (without requesting a recess). The board continued to conduct business in his absence. There was a call for the vote regarding the hiring of a new employee. Two (2) board members voted to hire the new employee and two (2) board members voted against the hiring of the new employee. The mayor voted to break the tie for hiring the new employee. Circumstantially., the new employee should have been hired.

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