Mississippi Advisory Opinions March 16, 2018: AGO 2018-00044 (March 16, 2018)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Scott Corlew

SUBJ: School - Trustees

SBCD: 211

TEXT: Scott Corlew, Esquire

Attorney for Moss Point School District

Post Office Box 808

Pascagoula, Mississippi 39568

Re: Term of School Board Member

Dear Mr. Corlew:

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

Facts

You state that, pursuant to Senate Bill 2463 [now codified in Mississippi Code Annotated Section 37-7-203(4)], an election was held in November 2017 to elect school board members from Districts 1, 3, and 5 of the newly created special trustee election districts. Nobody qualified to run for the District 3 position. Therefore, in accordance with Section 37-7-203(4)(b), an individual was appointed by the Most Point municipal governing authorities to serve on an interim basis.

Question

You ask how long the interim appointee will serve.

Response

The interim appointee will serve until the first Monday in January 2019, at which time a qualified individual elected in a special election held on the first Tuesday after the first Monday in November 2018 will assume the office and serve the remainder of the term.

Applicable Law and Discussion

Section 37-7-203(4)(b) provides, in part:

(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. (Emphasis added)

While Section 37-7-203(4)(b) does not specifically state when an election is to be conducted to fill the remainder of the term for districts where no one qualified for the 2017 Election, we are of the opinion that the provisions for the election of trustees to fill vacancies that occur from and after January 1, 2018 should apply.

Section 4, Paragraph 4 of Senate Bill 2463, Regular Session 2017, was apparently drafted based on the erroneous assumption that the Moss Point Municipal General Elections are conducted in November. See Title to Senate Bill 2463 attached. Moss Point is, in fact, a code charter municipality and, pursuant to Section 23-15-173, conducts its general elections in June of the appropriate years.

In Drane v. State , 493 So.2d 294 (Miss. 1986), the Mississippi Supreme Court said:

Where possible, this Court will interpret statutes so as to realize their purposes rather than defeat them. Brady v. John Hancock Mut. Life Ins. Co. , 342 So.2d 295, 303 (Miss.1977). Nor will this Court impute an unjust or absurd purpose to the legislature when any other reasonable construction can save it from such an imputation. Baker v. State , 327 So.2d 288, 291 (Miss.1976); Aikerson v. State , 274 So.2d 124, 127 (Miss.1973). When two statutes on the same subject matter apparently conflict the court has the duty to harmonize them if possible, so as to effect the underlying policy. Western Line Consol. School Dist. v. Greenville Mun. Sep. School Dist ., 433 So.2d 954, 958 (Miss.1983); Surles v. State, ex rel ., McNeel, 357 So.2d 319, 320-21 (Miss.1978). Section 49-1-43 must be harmonized with Section 49-1-29, .... .

It is the obvious intent that an election to fill a vacancy where no individual qualified for a specific trustee district in the November 2017 election and the municipal governing authorities appointed an individual to serve until the first Monday in January 2019, is that a trustee is to be elected on the first Tuesday after the first Monday of November 2018 and will assume the office and serve the remainder of the term beginning on the first Monday in January 2019.

We note that there is also a conflict within Section 37-7-203(4)(b), which provides for four year terms for school board members elected in the general election and later provides that anyone elected at a special election to fill a vacancy on the school board shall serve a "full term" of four years (as opposed to serving the remainder of the term). If, for example, a school board member vacated his position with three years remaining on his term and the person elected to fill the vacancy served for four years, the board members' terms would be out of sequence. For the sake of uniformity in the sequence of the election of trustees, all trustee elections must be conducted on the cycle of every four years as provided in paragraphs (b) and (c) of Section 37-7-203.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General.