Mississippi Advisory Opinions April 15, 1980: AGO 000001599 (April 15, 1980)

AGO 000001599.

Dear Mr. Cain:

Attorney General Bill Allain has received your opinion re- quest dated April 2, 1980 and has assigned it to me for research and reply. As a convenience, I state your specific question and follow it with this office's response.

QUESTION:

"1. We have a school board member (elected), whose term would normally expire in January 1981. She lives in the city. With creation of the Booneville Municipal Separate School Dis- trict effective July 1, 1980, will she auto- matically 'go off the Prentiss County Board of Education on that date, or will she be allowed to complete her term?

"If she does 'go off' the Prentiss County Board of Education on July 1, 1980, how is a replace- ment for her selected?"

ANSWER:

Although the county school board member whose district includes "Booneville Municipal Separate School District" will not be eligible to succeed herself since under 37- 5-3, Mississippi Code of 1972, states that "no person who is a resident of the territory embraced within a mu- nicipal separate school district or a special municipal separate school district shall be eligible to be a member of a county board of education", the incumbent will be allowed to conclude her term if she continues as a resi- dent of the district. Her successor will be elected for the six year term beginning the first Monday of January, 1981, the successor candidate qualifying by petition fil- ed "not more than ninety (90) days and not less than six- ty (60) days prior to the date of the general election" to be held Tuesday, November 4, 1980. See Sections 37-5-3 and -9, ibid.

Note, also, that under 37-5-3, supra, "qualified electors resi- ding within a municipal separate school district ... shall not be eligible to vote or participate in the election of members of the county board of education".

Also, under 37-5-5, ibid, if the new separate school district "shall embrace and occupy all or more than eighty (80) per cent of the territory of one or more supervisors districts of a coun- ty then the successor trustee will be elected by the qualified electors of the remainder of the county at large and shall be a resident and qualified elector of a county outside of the munici- pal separate school district unless your county falls within the stated exception.

QUESTION:

"2. I reside in the city limits. As elected County Superintendent of Education, is there any requirement that I move the county effective July 1, 1980? At the present time, all residents of Prentiss County, inclu- ding those residing within Baldwyn Separate and Boone- ville Separate, vote on any questions or elections con- cerning the schools in all of Prentiss County. We have asked that the two separate districts be taken out, but this legislation will probably not be acted on until next year."

ANSWER:

A. I find no residence requirements that the superintendent be more than "a qualified elector and a citizen of the state for four years, and of the bounty for two years immediately preceding his election" and the creation of the municipal separate school district will not charge the residence re- quirements of the elected superintendent.

B. As to who of the county electorate is able to participate in the election of a county superintendent, I enclose a print copy of 37-5-71, ibid, for you to track down the geographical appli- cability of the exceptions listed as you are more familiar with your particular territory. I just have to assume that as it now stands, qualified electors within the municipal separate school districts of your county may vote in the election of the county superintendent of education and the county superintendent of edu- cation is not required to live "out of" the municipal separate school district in the county.

QUESTION:

"3. School buses. Is the Prentiss County Board of Education, by law, required to give any school buses to the Booneville Municipal Separate School District? May we sell buses to them? If we should give them buses, would we be subject to be sued by a citizen of the county for giving away county property?"

ANSWER:

The earlier opinions of this office to Joe Ray Langston, dated January 14, 1980, and to Thomas E. Childs, dated March 7, 1980, are enclosed. The statements in these as to what happens to the property is all the opinion that this office is in a position to give on the subject.

QUESTION:

"4. In a previous opinion, dated January 14, 1980, in reply to Joe R. Langston's Point IV regarding teacher employment after separation of the two school districts, you stated: 'I do not interpret Section 37-9-105, ibid, as automatically terminating employ- ment by the county school district of its staff pres- ently within the Booneville Separate School District area, but the District will need to give written notice to those affected under said Code section.'

"We would appreciate a clarification of this opinion. Specifically, if the employment of the teachers is not considered to be terminated, which school district has an obligation to either hire them or to terminate their employment? Does the Booneville Municipal Se- parate School District have no obligation toward these employees as regards continuation of their employment?

The Prentiss County School District did issue notices by certified letter that they could not offer them renewal of their contract for 1980-81 as their school would no longer be a part of the Prentiss County School District.

Does the Prentiss County School District have any further legal obligation to employ any of the teachers in the four Booneville city schools?"

ANSWER:

All the above cited phrase from this office's opinion of January 14, 1980 referred to was the fact that those entitled to notice were not charged with the knowledge of the transition from county school to municipal separate school, but that a written notice formally so advising them of the change and of the termination would be required. Comment on the balance of your questions in number 4. would just not be appropriate at this time.

Thank you for giving this office this opportunity to be of guidance.

Yours very truly,

BILL ALLAIN, ATTORNEY GENERAL

BY:

Richard M. Allen Special Assistant Attorney General

RMA/ped Enclosures