Mississippi Advisory Opinions May 20, 2016: AGO 2016-00192 (May 20, 2016)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Joyce Chiles

SUBJ: Supervisors - Authority

SBCD:220

TEXT: Joyce I. Chiles, Esquire

Attorney for Leflore County Board of Supervisors

Post Office Box 250

Greenwood, Mississippi 38935-0250

Re: East Leflore County Water and Sewer District Board of Commissioners appointment

Dear Ms. Chiles:

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

Your letter states, in part:

East Leflore County Water and Sewer District owns and provides water and sewer services within a certificated area of parts of Supervisor Districts 2,3,4 and 5. East Leflore County Water and Sewer District has an Interlocal Agreement with the Town of Schlater to operate and maintain the Town’s water system, but does not own the water system , nor is the system within East Leflore County Water and Sewer District’s certification. The Town of Schlater is within the boundary of Leflore County.

Leflore County Board of Supervisors has appointive authority to the East Leflore County Water and Sewer District Board of Commissioners. The District 3 Supervisor desires to appoint a representative from the Schlater area to the East Leflore County Water and Sewer District Board.

Questions and Responses

Question 1: May an appointee serve on East Leflore County Water and Sewer District Board who lives outside of the certificated water district area, but lives in an area where water and sewer services are operated and maintained by the water district via an Interlocal Agreement?

Response: Section 19-5-171 prescribes the eligibility of members of the board of commissioners of a utility district created pursuant to Sections 19-5-151 through 19-5-207. Section 19-5-171(1) provides:

Every resident citizen of the county in which is located any district created under Sections 19-5-151 through 19-5-207, of good reputation, being the owner of land or the conductor of a business situated within the district and being over twenty-five (25) years of age and of sound mind and judgment, shall be eligible to hold the office of commissioner. (Emphasis added)

Therefore, if the resident of Leflore County lives outside the geographical area of the East Leflore County Water and Sewer District but owns land or conducts a business within the district and meets the other specified qualifications, then the resident would be eligible to serve as a member of the East Leflore County Water and Sewer District Board of Commissioners.

We are aware of the Mississippi Court of Appeals’ decision in Lamey v. Bd. of Supervisors, 46 So. 3d 878 (Miss. Ct. App. 2010) which upheld the Jackson County Board of Supervisors’ declaration of a vacancy on a county utility district board of commissioners based on the fact that a commissioner was no longer a resident of the district. However, in that case, the commissioner moved out of the county. In the instant case, the prospective commissioner, while not a resident of the district, is a resident of Leflore County. The factual question then becomes whether he or she owns land or conducts a business within the utility district.

We note that Section 250, Mississippi Constitution of 1890 provides that “(a)ll qualified electors and no others shall be eligible to office; ... .” This, of course, means that one must be a lawfully registered voter in Leflore County in order to be eligible to serve as a member of the East Leflore County Water and Sewer District Board of Commissioners.

Should a prospective candidate for the office of commissioner meet the qualifications as discussed above, he or she could be lawfully appointed by a vote of a majority of the members of the Leflore County Board of Supervisors. See Section 19-5-167.

Question 2: Does Section 19-5-177 of the MCA refer to the legal boundaries of a county or the certificated water district?

Response: Sections 19-5-151 through 19-5-207 set forth the procedures for the incorporation of water, sewer, garbage disposal and fire protection districts and the powers and authority of such districts. Those statutory provisions govern utility districts.

Section 19-5-177 bestows certain powers on utility districts. Any reference to boundaries in Section 19-5-177 would be in regard to the boundaries of a utility district as opposed to a county in which such district is located.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General