Mississippi Advisory Opinions February 24, 2017: AGO 2017-00060 (February 24, 2017)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Gerald Patch

SUBJ: Schools - Trustees

SBCD: 211

TEXT: Gerald C. Patch, Esquire

Attorney for the Picayune Municipal School District

Post Office Box 460

Picayune, Mississippi 39466

Re: Elected School Board Member's term

Dear Mr. Patch:

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

Background

You point out that Mississippi Code Section 37-7-215 was amended by Senate Bill 2074 (2012 General Laws) by providing that the election of all school board members are to "be held on the first Tuesday after the first Monday in November of each year."

Prior to that amendment, elections of members of boards of trustees from the added territory of municipal separate school districts were conducted in March of each year.

One of the school board's elected trustees who was elected to a five year term under the prior law is concluding his five year term at the end of February, 2017. Under current law, his replacement will not be elected until November, 2017 and would not take office until January, 2018.

Your concern is that, for a period often (10) months, the school district would have only four (4) members, which could create issues with regard to having a quorum at times when members are absent and/or there is a need for one of the board members to recuse himself or herself on an issue.

You cite two of our prior opinions. In one opinion we said that when a public office is filled by election, the right to the office ceases with the expiration of the term, except when provided by law that the incumbent holds over until his or her successor is elected and qualified. MS AG Op., Brock (January 19, 2010)

The other opinion addressed the situation facing your school district, i.e., an election was held under the old law in March with the five (5) year term expiring prior to the next election which, under the new law, would not be conducted until the following November.

We opined that, in order to avoid unintended results, the legislative intent was for the trustees holding office in that situation to continue to serve until their successors take office in January following their election in November. MS AG Op., Rodolfich (March 1, 2013).

Issue Presented

You seek clarification as to whether or not the elected board member whose normal five year term expires at the end of this month holds over, or whether the seat becomes vacant.

Response

As we said in Rodolfich, based on the unique circumstances created by the change in the law and in order to avoid the unintended result of having a ten month period of not having a full compliment of school board members, we are of the opinion that trustees elected under the old law whose terms expire at the end of February will legally continue to serve as dejure board members until those elected in November take office in January 2018.

Analysis

We see no conflict between the two opinions cited and discussed above.

In Brock, we correctly stated the general law regarding holding over in office beyond the expiration of a statutory term.

In Rodolfich, we addressed a unique set of circumstances, applied a basic rule of statutory construction, and issued a narrowly drawn opinion designed to avoid unintended results.

In accordance with case law cited in Rodolfich, we applied the primary rule of statutory construction which is to ascertain the intent of the legislature not only from the statute as a whole but its historical background, its subject matter, and the purposes and objects to be accomplished. We then determined that the legislative intent of Senate Bill 2074 was to provide for continuity in the operation of municipal school boards, with a full compliment of members, during the transition from March elections to November elections by extending the terms of office of those trustees elected in March in prior years under the old law that were set to expire at the end of February of the appropriate years.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General