Mississippi Advisory Opinions April 19, 1984: AGO 000004543 (April 19, 1984)

AGO 000004543.

Dear Mrs. Donald:

Attorney General Edwin Lloyd Pittman has received your letter of request and has assigned it to me for research and reply.

Your letter states:

"The Mayor and Board of Aldermen have requested that I write you and request your opinion regarding a special election which must be held in the City. Two of our aldermen have resigned, both to become effective on April 30, 1984. We would appreciate your advice on the following questions:

"(a) Should the order required by Section 21-11-9 be entered after April 30, 1984?

"(b) The procedure and notice requirements for said election;

"(c) How to determine the winners of the election and whether a runoff election will be required, that #s, would the voters vote for two aldermen, since there are two vacancies, and how would it be determined who won and/or who would be placed on the ballot for the runoff election; and

"(d) Could the municipal election be held at the same time as the Congressional elections?"

Mississippi Code Annotated 21-11-9 and -11 (1972) govern the time and notice requirements for municipal special elections.

Please see the enclosed copy of an opinion addressed to Honorable Byrd P. Mauldin, dated May 11, 1972, which gives this office's views on how conflicting provisions of these two Code sections should be resolved and how certain federal court decisions affect the method for candidates to have their names placed on the ballot.

In response to your first and second questions, the above cited provisions governing municipal special elections come into play only after a vacancy in an elective office actually exists.

Upon the actual occurrence of a vacancy, the municipal governing authorities are required to follow the provisions of 21-11-11 which require that a resolution be adopted fixing a date upon which such election shall be held. Said date must be not less than twenty-one (21) nor more than thirty (30) days after the date said resolution is adopted.

Section 21-11-11 further requires that not less than three (3) weeks' notice of such election shall be given by the municipal clerk by a notice published in a newspaper published in the municipality once each week for three (3) weeks next preceding the date of the election, and by posting a copy of such notice at three (3) public places in such municipality. If no newspaper is published in the municipality, such notice may be published in some newspaper of general circulation in said municipality.

In response to your third question, it is the opinion of this office that if, in fact, there are two or more vacancies on the board of aldermen to be filled on an at-large basis, the winner(s) and/or the participants in a runoff election must be determined in accordance with the provisions of 3110, Code of 1942, which governs primary elections when two or more candidates are to be nominated.

Please see the enclosed copy of an opinion addressed to Mr. R. E. Wooley, dated May 11, 1977, for an explanation of that procedure.

In response to your last question, please note that 21-11- 11 which requires the adoption of a resolution setting the date of the special election does not specify when said resolution must be adopted. Therefore, if the upcoming congressional elections are not less than twenty-one (21) nor more than thirty (30) days after the date said resolution is adopted, the board would have the option to set the municipal special election on the same day as the congressional elections.

The two elections would, of course, be conducted separately by the county election commission and the municipal election commission respectively.

Very truly yours,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY

Phillip C. Carter Special Assistant Attorney General

PCC:ls Enclosure