Mississippi Advisory Opinions September 01, 2016: AGO 2016-00402 (September 01, 2016)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Dana Burcham

SUBJ: Municipalities

SBCD: 142

TEXT: Ms. Dana F. Burcham

City Clerk, City of Nettleton

124 Short Street Nettleton,

Mississippi 38858

Re: Section 21-3-3 as amended by House Bill 130, 2016 Regular Session

Dear Ms. Burcham:

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

Background

Your letter states:

I am the elected city clerk in the City of Nettleton, MS. With the passage of House Bill 130 this past legislative session (2016 Regular Session), Section 21-3-3, MS Code of 1972, stands amended and removes the position of "city or town clerk" from the elective officers of code charter municipalities. The amendment further adds that, "from and after July 1, 2017, the governing authorities of the municipality shall appoint a city or town clerk who shall likewise serve as an officer of the municipality." Also, the introduced House Bill 130, Section 2, was amended from its original wording by the Senate to change the effective date from July 1, 2016, to July 1, 2017. This change would coincide with the end of all elected municipal clerk's terms of office.

Questions and Responses

Question 1. Does the amended Section 21-3-3, MS Code of 1972, which was passed and signed into law by the governor, mean that effective July 1, 2017, there will be no elected city or town clerk, in office, in the State of Mississippi?

Response: Because July 1, 2017 falls on Saturday, the terms of elected municipal clerks will expire on July 3, 2017 (see our analysis below). Therefore, as of July 3, 2017 there will be no elected city or town clerks for code charter municipalities which are governed by Chapter 3, Title 21, Mississippi Code of 1972.

Question 2. If the answer to question (1) above is yes, would there be a need for the position of city or town clerk to be on the ballot in the upcoming 2017 municipal elections for which qualifying begins in January of 2017, before the effective date of HB 130?

Response: There is no need to include the position of city or town clerk on the ballot for the upcoming 2017 municipal elections because from and after July 1, 2017, the municipal governing authorities will be required to appoint a municipal clerk at their first regular meeting of the new term which must necessarily occur on or after July 3, 2017.

Applicable Law

Mississippi Code Section 21-3-3, as amended by House Bill 130, 2016 Regular Session, will become effective on July 1, 2017. It provides, in part:

The elective officers of all municipalities operating under a code charter shall be the mayor, the aldermen, municipal judge, the marshal or chief of police, the tax collection and the tax assessor. From and after July 1, 2017, the governing authorities of the municipality shall appoint a city or town clerk who shall likewise serve as an officer of the municipality......Such governing authorities shall have the further power to provide that all or any of such officers, except those of mayor and aldermen, shall be appointive,..... (Emphasis added)

Section 21-3-5 provides, in part

From and after the expiration of the terms of office of present municipal officers, the mayor and board of aldermen of all municipalities operating under this chapter shall have the power and authority to appoint a street commissioner, and such other officers and employees as may be necessary, and to prescribe the duties and fix the compensation of all such officers and employees..... (Emphasis added)

Section 21-15-1, a more general statute, provides:

All officers elected at the general municipal election provided for in Section 23-15-173, shall qualify and enter upon the discharge of their duties on the first day of July after such general election that is not on a weekend, and shall hold their office for a term of four (4) years and until their successors are duly elected and qualified. (Emphasis added)

Section 21-15-3 provides:

At the first regular meeting of the governing authorities succeeding each regular municipal election, they shall elect the officers to be elected by them and such officers shall take the oath of office.

Analysis

In accordance with Section 21-15-1, since July 1, 2017 falls on a Saturday, the present terms of municipal officers of code charter municipalities expire on Monday, July 3, 2017. Section 21-3-3, as amended, becomes effective on Saturday, July 1, 2017. Therefore, the present municipal officers will still be in office after the effective date of House Bill 130.

Section 21-3-5 dictates that upon the expiration of the terms of the present municipal officers the municipal governing authorities must appoint the officers "as may be necessary."

Pursuant to Section 21-15-3, municipal governing authorities are required to make the necessary appointments at their first regular meeting of the new term.

Since that first regular meeting will necessarily occur subsequent to July 1, 2017, and House Bill 130 will then be effective, it is incumbent on the municipal governing authorities to appoint a municipal clerk at that meeting.

That appointment negates any reason to place the office of municipal clerk on the ballot for the 2017 municipal elections.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General