Mississippi Advisory Opinions February 16, 2018: AGO 2018-00026 (February 16, 2018)

Advisory Opinion Text

AUTH: Beebe Garrard

RQNM: Linda Ivy

SUBJ: Elections - General

SBCD: 67

TEXT: The Honorable Linda Ivy

Election Commissioner, District 1, Clay County

Post Office Box 364

West Point, MS 39773

Re: School Board Elections for the West Point Consolidated School District

Dear Ms. Ivy:

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

Issues Presented

In your request, you provide:

The Clay County Election Commissioners would like an opinion regarding the election of school board members for the West Point Consolidated School District. Senate Bill 2637 consolidated the Clay County School District and the West Point School District. There were to be three appointed school board members and two elected board members residing outside the city limits.

The first election for school board members was held in November of 2014 in a special election. We need an opinion, in writing, to inform us as to whether to have an election in November 2018, and every four years after that. Statute 37-7-104.2 deals with the issue. We also need to know the qualification requirements for each candidate and the date the material is due in the circuit clerk’s office.

Applicable Law

Section 37-7-104.2 provides, in relevant part:

In the new West Point Consolidated School District, there shall be a new board of trustees comprised of five (5) members selected as follows: (a) the Mayor and Board of Aldermen of the City of West Point shall appoint three (3) of the five (5) members, each to be selected for a term of four (4) years; and (b) two (2) members to be elected for a term of four (4) years by the electors of Clay County residing outside of the West Point corporate limits who shall be residents of that territory and who shall be elected in a November 2014 special election which shall be called by the Governor for that purpose. All subsequent members of the board elected from the territory outside of the West Point corporate limits shall be elected for a term of four (4) years at the regular general election held on the first Monday in November next preceding the expiration of the term of office of the respective member or members. All elected and appointed members shall take office on the first Monday of January following the date of their election or appointment.

As an initial matter, we must address the conflict in Section 37-7-104.2, which provides that elections for the board members representing the territory outside the West Point corporate limits shall be elected for a four year term at the regular general election held on the first Monday in November. There are no regular general elections held on the first Monday in November. Judicial elections and regular general state and county elections are held on the Tuesday following the first Monday in November. To hold the school board elections on the first Monday in November would require the Clay County election officials to hold two elections within two days. This is an absurdity that cannot be imputed to the legislature. See Clark v. State , 858 So.2d 882 (Miss. App., 2003) (“Golden rule” of statutory interpretation is the avoidance of absurdity). Thus, any regular elections held pursuant to Section 37-7-104.2 should be held on the first Tuesday after the first Monday in November.

Section 37-7-201 provides:

In order for a person to be eligible to hold the office of trustee of any school district, such person must be a bona fide resident and a qualified elector of such school district, and, in the case of a school district lying in two or more counties, but not including municipal separate school districts, such person must be a bona fide resident and a qualified elector of the territory entitled to such representation on the board.

Under Section 37-7-229, the county election commission is required to “prepare from the records in the office of the county registrar a list of the qualified electors of the (consolidated) school district in which such election is to be held who are eligible to participate in the election. The list shall be furnished to the poll managers in each precinct, together with the ballots and other election supplies.” With respect to applicable deadlines, Section 37-7-225 provides, in relevant part:

The county election commissioners shall place the name of any person eligible to hold the office of trustee on the ballot used in the election, provided that such candidate shall have filed with the county registrar, “not more than ninety (90) days and by 5:00 p.m. not less than sixty (60) days prior to the date of such election,” a petition of nomination signed by not less than fifty (50) qualified electors of the school district. Where there are less than one hundred (100) qualified electors in said district, it shall only be required that said petition of nomination be signed by at least twenty percent (20%) of the qualified electors of such school district.

Response

According to the facts you provided, the two school board members from the territory outside the West Point corporate limits were elected in November 2014 for a four year term, in accordance with Section 37-7-104.2. The statute provides that “subsequent members of the board elected from the territory outside of the West Point corporate limits shall be elected for a term of four (4) years at the regular general election held on the first Monday in November next preceding the expiration of the term of office of the respective member or members.” Section 37-7-104.2. Thus, as stated in your request, the next election for the board members representing the territory outside the West Point corporate limits should occur in November 2018 with subsequent elections occurring every 4 years after that.

In accordance with Sections 37-7-104.2 and 37-7-201, the board members elected to represent the territory outside the West Point corporate limits should be residents and qualified electors of that territory. Petitions of nomination should be filed in the circuit clerk’s office, “not more than ninety (90) days and by 5:00 p.m. not less than sixty (60) days prior to the date of such election,” in accordance with Section 37-7-225.

If we may be of further service, please let us know.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

Beebe Garrard, Special Assistant Attorney General

---------

Notes:

The next elections for Supreme Court Justice, Court of Appeals Judge, Chancery and Circuit Court Judges, Levee Commissioners and County Court Judges will be held November 6, 2018 (the Tuesday after the first Monday in November). Sections 23-15-991, 23-15-1015, 9-5-1, 9-7-1, 9-9-5. The next general elections for most state, county, and county district offices will be held November 5, 2019 (the Tuesday after the first Monday in November). MS Const. Art 5 Section 140; Miss. Code Ann. Section 23-15-193. Additionally, the first Tuesday after the first Monday in November is the regular special election day. Section 23-15-833.

---------