Mississippi Advisory Opinions December 15, 2017: AGO 2017-00391 (December 15, 2017)

Advisory Opinion Text

Amy Lassitter St. Pe', Esquire

Attorney for City of Moss Point

P.O. Box 1618

Pascagoula, Mississippi 39568-1618

Re: Moss Point School District Trustee Elections

Dear Ms. St. Pe':

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

Background

The Mississippi Legislature passed Senate Bill 2463, Regular Session 2017, which amended Mississippi Code Section 37-7-203.

You cite Code Section 37-7-203(4)(a)(b) and (c) which pertains specifically to the Moss Point School District (the School District). The provisions of that statute set up a procedure for the election of a new board of trustees for the School District.

Section 37-7-203(4)(a) required the governing authorities of the City of Moss Point to apportion the School District, including any added territory outside the corporate limits, into five (5) special trustee election districts.

Section 37-7-203(4)(b) required that elections be held on the first Tuesday after the first Monday in November 2017 to elect school board members from Districts 1, 3 and 5 for four (4) year terms beginning on the first Monday of January 2018. It further provided that if no individual qualifies for the elective office of school district trustee, the municipal governing authorities must appoint a qualified person to serve until the first Monday in January 2019 at which time the trustee duly elected to serve the remainder of the term will assume the office. From and after January 1, 2018, any vacancy on the board is to be filled by the remaining members within sixty (60) days after a vacancy occurs. Such appointee shall serve until the first Monday of January succeeding the next general election.

Section 37-7-203(4)(c) provides that on the first Tuesday after the first Monday i n November 2018, and every four (4) years thereafter, an election shall be held in the School District for Districts 2 and 4 at the same time as the Congressional mid-term elections are held.

In the recent election, no one qualified for District 3.

Questions

1: Does the person appointed for District 3 have to reside in District 3 or can the Board select someone "at large" to fill the position since the statute does not state that such person must be appointed from the trustee election district like it does when discussing board of trustee appointments?

2: When the newly elected board members and the appointee for District 3 take office in January, what happens to the current board members?

3: Currently, the board members are elected citywide so there are no current members that were elected for Districts 1, 3 and 5, which are the districts the newly elected/appointed members represent. Who makes the decision on which board members are removed and which board members stay? Who, of the current school board members, remain on the Board and how many districts does the city have to appoint someone to?

4: If the Board of Aldermen fail to make their appointment(s) before January 1, 2018, leaving the seats vacant, does the responsibility for making the appointments then fall on the school board trustees?

Preface

We preface our responses by stating that the clear legislative intent of Section 37-7-203(4) is that, beginning on the first Monday in January 2018, the School District is to be governed by a five member board of trustees composed of one qualified elector residing in each of the five (5) newly created special trustee election districts.

Responses

In response to your first question, an individual appointed to serve District 3 must be a resident of District 3.

In response to your second question, in accordance with Section 37-7-203 (4)(b) the current board members who were in office on the first Monday in July 2017 and whose terms would otherwise expire after the first Monday in July 2018 will now expire on the first Monday of January 2018. We are unable to determine which and how many board members meet that criteria.

You state that three (3) of the five (5) current trustees reside in District 5 which has just elected a trustee to represent that district for a four(4) year term beginning on the first Monday of January 2018. The fact that those three (3) trustees reside in District 5 disqualifies them from serving beyond January 2018 because the trustee for that district has now been elected. As discussed below, the other two (2) trustees could be eligible to continue serving as the trustee for District 2 or District 4 depending on where they reside and whether their terms lawfully extend beyond the first Monday of January 2018.

In response to your third question and based on the information provided in your letter, we are unable to determine whether the terms of the two current trustees who do not reside in District 5 extend beyond the first Monday of January 2018 and whether they are qualified electors of District 2 or District 4. If the term of one of those trustees extends beyond the first Monday of January 2018 and he/she is a qualified elector of District 2, we are of the opinion that he/she would be entitled to continue to serve as the District 2 trustee. Likewise, if the term of one of those trustees extends beyond the first Monday of January 2018 and he/she is a qualified elector of District 4, we are of the opinion that he/she would be entitled to continue to serve as the District 4 trustee. If that is the case, the eligible trustee(s) would serve until the first Monday of January 2019 or the expiration of their current term, whichever comes first.

As indicated above, the terms of some of the current board members will expire on the first Monday of January 2018. As of that date, no elections will have been held for Districts 2 and 4. Therefore, if the two trustees who do not reside in District 5 are not qualified electors of District 2 or District 4, even though they may have remaining time on their current terms, they are ineligible to continue in office as the trustee for District 2 or District 4 as discussed above. If that is the case, the trustees taking office on the first Monday in January 2018 will have to fill any such vacancy by appointing a qualified elector(s) of the appropriate district(s). Any member so appointed will serve until the first Monday in January 2019 at which time members for those districts elected in November 2018 will assume the offices for four (4) year terms.

In response to your fourth question, the only appointment the municipal governing authorities are authorized to make at this time is for District 3 by virtue of no one qualifying for that position, thereby creating a vacancy that must be filled by said governing authorities in accordance with Section 37-7-203(4)(b). The governing authorities are legally required to make that appointment and will be derelict in their duties if they refuse to do so. Vacancies occurring from and after January 1, 2018, are to be filled by appointment by the duly serving board members serving at the time the vacancies are created, except that if a vacancy occurs as a result of no one qualifying for Districts 2 and 4 in the November 2018 elections, such appointment(s) will be made by the municipal governing authorities in accordance with Section 37-7-203(4)(c).

Applicable Law and Discussion

Section 250 of the Mississippi Constitution of 1890 provides, in part:

All qualified electors and no others shall be eligible to office.....(Emphasis added.)

Section 23-15-11 provides, in part:

Every inhabitant of this state, except persons adjudicated to be non compos mentis, who is a citizen of the United States of America, eighteen (18) years old and upwards, who has resided in this state for thirty (30) days and for thirty (30) days in the county in which he or she seeks to vote, and for thirty (30) days in the incorporated municipality in which he or she seeks to vote, and who has been duly registered as an elector under Section 23-15-33, and who has never been convicted of vote fraud or of any crime listed in Section 241, Mississippi Constitution of 1890, shall be a qualified elector in and for the county, municipality and voting precinct of his or her residence,.....(Emphasis added.)

The clear meaning of the above quoted constitutional and statutory provisions is that, unless otherwise provided for in the Mississippi Constitution, one must be a resident of the district he seeks to serve. MS AG Op., Wilson (September 3, 2010).

Section 37-7-203 (4) provides:

(4)(a) Beginning in 2017, in any municipal separate school district that is traversed by the Escatawpa River and in which Interstate Highway 10 and Mississippi Highway 63 intersect, the board of trustees of the municipal separate school district shall consist of five (5) members, each to be elected for a term of four (4)years in the manner provided in this subsection. Within forty-five (45) days after July 1, 2017, the municipal governing authority shall apportion the municipal separate school district, including any added territory outside the corporate limits, into five (5) special trustee election districts as nearly equal as possible according to population, incumbency and other factors pronounced by the courts before August8, 2017. The municipal governing authority shall place upon its minutes the boundaries determined for the new five (5) trustee election districts and shall publish the same in a newspaper of general circulation within the school district for at least three (3) consecutive weeks. After having given notice of publication and recording the same upon the minutes of the municipal governing authority, the new district lines shall be effective.

(b) On the first Tuesday after the first Monday in November 2017, and every four (4) years thereafter, an election shall be held in the municipal separate school district for local school board members from trustee election districts 1, 3 and 5 in the same manner and at the same time as the general municipal election is held and conducted, for the purpose of electing the board of trustees of the municipal separate school district. All members of the board of trustees elected pursuant to this paragraph (b) shall take office on the first Monday of January immediately following the date of their election. However, in order to provide for an orderly transition, the term of each member of the board of trustees serving on July 1, 2017, which otherwise would expire after the first Monday in July 2018, shall expire on the first Monday of January 2018. If no individual qualifies for the elective office of school district trustee, the trustee for that specific trustee district shall be filled by appointment of the municipal governing authority; however, the person so appointed to fill the vacancy may serve only until the first Monday in January 2019, at which time the trustee elected pursuant to this subsection shall take office for the remainder of the unexpired initial term.

From and after January 1, 2018, any vacancy on the board of trustees shall be filled by appointment by the remaining members of the board of trustees within sixty (60) days after the vacancy occurs. The appointee must be selected from the qualified electors of the trustee election district in which the vacancy occurs. The appointee shall serve until the first Monday of January succeeding the next general municipal election, at which election a member from that trustee election district shall be elected for a full term.

(c) On the first Tuesday after the first Monday in November 2018, and every four (4) years thereafter, an election shall be held in the municipal separate school district for local school board members from trustee election districts 2 and 4 in the same manner and at the same time as the Congressional mid-term election is held and conducted, for the purpose of electing the board of trustees of the municipal separate school district. All members of the board of trustees elected pursuant to this paragraph (c) shall take office on the first Monday of January immediately following the date of their election. However, in order to provide for an orderly transition, the term of each member of the board of trustees serving on July 1, 2018, which otherwise would expire after the first Monday in July 2018, shall expire on the first Monday of January 2019. If no individual qualifies for the elective office of school district trustee, the trustee for that specific trustee district shall be filled by appointment of the municipal governing authority; however, the person so appointed to fill the vacancy may serve only until the first Monday in January 2020, at which time the trustee elected pursuant to this subsection shall take office for the remainder of the unexpired initial term.

From and after July 1, 2020, any vacancy on the board of trustees shall be filled by appointment by the remaining members of the board of trustees within sixty (60) days after the vacancy occurs. The appointee must be selected from the qualified electors of the trustee election district in which the vacancy occurs. The appointee shall serve until the first Monday of July succeeding the next general municipal election, at which election a member from that trustee election district shall be elected for a full term.

Summary

Each trustee elected or appointed to serve one of the five newly created special trustee election districts for the School District must be a resident and qualified elector of the district he/she will be serving.

The terms of current trustees who were in office on the first Monday of July 2017 that would otherwise expire on the first Monday in July 2018 will now expire on the first Monday of January 2018.

The three (3) current trustees who reside in District 5 are disqualified from serving beyond January 2018. Trustees who do not reside in District 5 and have remaining time left on their term maybe eligible to continue to serve District 2 or District 4 until those elections are regularly held in November 2018 if they are legitimate residents and qualified electors of either of those districts. If eligible, such trustee(s) would serve until the first Monday of January 2019 or until their term expires, whichever comes first.

The municipal governing authorities are statutorily obligated to appoint a qualified elector of District 3 to fill the vacancy created by the failure of anyone to qualify as a candidate for that office in the November 2017 elections. Failure to make such appointment would constitute a dereliction of duty. Sincerely

Jim Hood, Attorney General.

Phil Carter, Special Assistant Attorney General.