Mississippi Advisory Opinions January 20, 2017: AGO 2017-00002 (January 20, 2017)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Alma Faye Custom

SUBJ: Municipalities

SBCD: 142

TEXT: The Honorable Alma Faye Custom

Board of Aldermen, Town of Isola

Post Office Box 268

Isola, Mississippi 38754

Re: Compensation of municipal election commissioners

JIM HOOD, ATTORNEY GENERAL

Dear Ms. Custom:

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

Background

You state that, at the beginning of the current term of the municipal governing authorities, the Board of Aldermen was under the assumption that the previous members of the municipal election commission could hold over until new commissioners were appointed. The Board recently learned that our office had opined that there is no authority for municipal election commissioners to hold over in office. MS AG Op., Bradley (September 6, 2013).

You further state that some of the previous commissioners are seeking compensation for work they performed after their term expired.

Question

Can the municipality legally pay the previous commissioners for work performed after the expiration of their term of office?

Response

No.

Applicable Law and Discussion

In Bradley we said:

We have consistently opined that the term of office of municipal election commissioners coincide with the term of office of the municipal governing authorities who appoint them. MS AG Op., Crowe (July 1, 1993); MS AG Op., Davis (September 26, 1977).

Mississippi Code Annotated Section 25-1-7 (Revised 2006) provides:

If any person elected or appointed to any state, state district, levee board, county, county district, or municipal office shall fail to qualify as required by law on or before the day of the commencement of his term of office, or for any cause any such officer shall hold over after his regular term of office expires under the authority given him to hold over until his successor is appointed or elected and qualified, a vacancy in such office shall occur thereby and it shall be fille [sic] in the manner prescribed by law, . (Emphasis added).

When a public office is filled by election by popular vote or by election in some other manner provided by law for a specified term, the right to the office ceases with the expiration of the term except when provided by law the incumbent holds over until his or her successor is elected and qualified. MS AG Op., LeSure (April 13,2009); MS AG Op. Dees, (August 1, 1989) citing Ott v. Lowery, 78 Miss. 487 (1901).

Section 25-1-7 requires that in order for a particular officer to be entitled to remain in office after the expiration of his or her term, there must be statutory authority specific to the office in question authorizing same. MS AG Op., Litchliter (April 14, 2006); MS AG Op., Burnett (June 12, 2000); MS AG Op., Hardwick (June 15,2000).

The Mississippi Supreme Court in Verger v. State ex rel. Brown, 45 So. 849 (1908) while addressing this issue in regard to the appointed clerk of the penitentiary board said:

The statute **** expressly fixed their term for the period of one year. There is not even any provision for their holding over until their successors are elected. At the expiration of this one year, unless re-elected, they are out of office.

From the above, it is apparent that the term of the commissioners in question expired in July 201.3 (the beginning of the current term). Therefore, those individuals have been serving in a mere de facto capacity. Appointments to fill these vacancies should be made forthwith.

While all official actions of those individuals acting as commissioners are valid [Mississippi Code Annotated Section 25-1-37 (Revised 2010)], de facto officers are not entitled to claim any compensation. MS AG Op., Perkins (June 27, 2014); MS AG Op., Hall (August 31, 2012); MS AG Op., Taplin (July 27, 2007). Please also see MS AG Op., Miller (January 20, 2017) enclosed.

Sincerely,

Phil Carter Special Assistant Attorney General

Enclosure

The Honorable Bobbie Miller

Mayor, Town of Isola

Post Office Box 553

Isola, Mississippi 38754

Re: Changing from a ward election system to an at-large system; municipal election commissioners; law enforcement

Dear Mayor Miller:

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

Questions and Responses

Question: What are the steps to take to change from a ward system of voting for the election of aldermen to an at large system of voting?

Response: For the reasons set forth below, we are of the opinion that the governing authorities of a code charter municipality may, by ordinance, change the municipal voting system from a four-ward, one at-large system back to an at-large system. However, anat-large system cannot be conceived or operated to minimize or cancel out voting strength of racial or political elements of the voting population

Mississippi Code Annotated Section 21-3-7, as amended by Senate Bill 2603, Regular Session 2016 (Supp. 2016), provides, in part:

1) Except as provided in subsection (3) of this section, in all municipalities having a population of less than ten thousand (10,000) according to the latest available federal census, there shall be five (5) aldermen, which aldermen may be elected from the municipality at large, or, in the discretion of the municipal authority, the municipality may be divided into four (4) wards, with one (1) alderman to be selected from each ward and one (1) from the municipality at large. On a petition of twenty percent (20%) of the qualified electors of any such municipality, the provisions of this section as to whether or not the aldermen shall be elected from wards or from the municipality at large shall be determined by the vote of the majority of the qualified electors of the municipality voting in a special election called for that purpose.

The above quoted language is essentially the same as the language that appears in the bound Volume 6 of the Mississippi Code, which the U.S. District Court in Stewart v. Waller, 404 F.Supp. 206 (N.D. Miss. 1975), invalidated and specifically held that "the pre-1962 statutory law governing aldermanic elections remains in effect as if Section 21-3-7 had never been enacted."

The pre-1962 statutory law governing aldermanic elections in Mississippi is Mississippi Code Annotated Section 3374-36 (1942) (Chapter 491, Laws of 1950), which provides:

In all municipalities operating under a code charter and having a population of less than ten thousand, according to the latest available federal census, there shall be five aldermen, which aldermen may be elected from the municipality at large, or in the discretion of the municipal authorities, the municipality may be divided into four wards, with one alderman to be elected from each ward and one from the municipality at large. In all such municipalities having a population often thousand, or more, according to the latest available federal census, there shall be seven aldermen, and the municipality shall be divided into six wards with one alderman to be elected from each ward and one from the municipality at large. The municipal authorities may establish as many voting precincts in each ward as may be necessary and desirable. The mayor of the municipality shall be elected from the municipality at large.

The Court in Stewart cautioned that an at-large election system may be susceptible to constitutional challenge whenever it operates to minimize or cancel out voting strength of racial or political elements of the voting population and that at-large voting schemes cannot stand constitutional test when they are shown to have been conceived or operated as purposeful devices to further racial discrimination or where state policy behind multimember districting is rooted in racial discrimination.

Question: How long do municipal commissioners serve?

Response: Municipal election commissioners are municipal officers whose terms of office run concurrently with the terms of the municipal governing authorities. MS AG Op., Bradley (September 6, 2013); MS AG Op., Warren (June 3, 1993); MS AG Op., Navarro (September 16, 1992).

As we said in Bradley, we find no "holdover" authority that would allow previously appointed election commissioners to continue in office beyond the last day of the term of the governing authorities who made the appointments. Please also see MS AG Op., Custom (January 20, 2017) enclosed.

Question: What is the purpose of having ordinances in place?

Response: The purpose of the adoption of ordinances is to provide a mechanism for municipal governing authorities to govern their municipalities.

In regard to the veto authority of mayors of code charter municipalities, Section 21-3-15 defines the term "ordinance" to include ordinances, resolutions, and orders.

Boards of aldermen may only take official action by the adoption of an ordinance, resolution, or order.

Additional statement: In addition to the specific questions you posed, you make the statement that the Board of Aldermen voted to get rid of the Chief of Police and other police officers and replaced the Chief of Police with the Sheriff, which serves in both positions.

You further state that the town is not covered properly, laws are being broken but nothing is being done, there is hardly anyone in the town, and you don't know what's going on because no schedule is ever made and communication is very minimal.

You further state that the town has a judge but no court is held.

Our comments: Section 21-3-3 requires that code charter municipalities have a chief of police.

It is unclear as to whether the Sheriff has been officially hired to simultaneously serve as Chief of Police or whether the Sheriff is exercising his countywide jurisdiction to provide law enforcement to the town.

As stated in our letter addressed to Willie L. Bailey, Esquire, dated May 11, 2016, regarding a proposed interlocal agreement between Humphreys County and the Town of Isola relating to law enforcement services, if the sheriff is to serve as the municipal chief of police, he must be a certified law enforcement officer.

If the Sheriff is a certified law enforcement officer and has been officially employed by the municipal governing authorities, said authorities would have some control regarding his duties as a municipal officer in the performance of his duties as the Chief of Police.

If the Sheriff is not a certified law enforcement officer or has not been officially employed as the municipal Chief of Police, the municipal governing authorities would not have any control as to the activities of the sheriff's department within the municipal corporate limits.

Sincerely,

Phil Carter, Special Assistant Attorney General