Mississippi Advisory Opinions January 02, 1985: AGO 000004722 (January 2, 1985)

AGO 000004722.

Dear Mr. Meadows:

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 City of Gulfport operates under a Code Charter issued in 1912. 'The City is governed by a three (3) man-commission, each of whom are elected at large. A copy of the Charter is attached marked Exhibit 'A'.

"On December 18, 1984, at a regular Council Meeting, two (2) of the Commissioners voted for, and the Mayor voted against, adopting an Ordinance to amend the Charter and increase the number of Commissioners from three (3) to five (5), four (4) of whom would be elected from districts to be created by the present Mayor and Commissioners, and one (1) of whom would be voted for and elected Mayor at large without regard to district lines. A copy of the Ordinance is attached marked Exhibit 'B'.

"The election for the voters to approve or reject this amendment to the Charter was set for Tuesday, January 29, 1985.

"At this same meeting, a Petition was presented by a group of citizens requesting that an election be held to determine whether or not the present form of government should be replaced with the Mayor-Council Form of Government.

"The two (2) Commissioners desire to hold one (1) election on January 29th, and present both forms of government on one (1) ballot. In the alternative, both forms would be presented at this election on separate ballots.

"The Mayor and Commissioners request an Opinion on the following questions:

QUESTION: Can the question of whether or not the City of Gulfport shall amend its Code Charter to provide for an increase in the number of Commissioners and the method of their election, as per the attached Ordinance, be on the same ballot on the same election day, with the question of whether or not the City of Gulfport shall retain the present form of government or adopt the Mayor- Council Form of Government? or in the alternative, Can each question be presented on a separate ballot on the same election day?

"One final question concerning the Petition presented requesting an election to determine whether or not the Mayor-Council Form of Government should be adopted.

"Under Section 21-8-3 Mississippi Code Annotated, 1972 as amended, twenty percent (20%) of the qualified electors may file such a Petition if the population of the City is less than 40,000. If the population is more than 40,000, then the Petition must be signed by ten percent (10%) of the qualified electors.

"In 1980, the City of Gulfport's population, as per the official government census, was less than 40,000. The proponents of the Petition for the Mayor-Council Form of Government, contend that recent government census figures show Gulfport's population to be more than 40,000.

QUESTION: In determining the population of the City of Gulfport for the purpose of calling an election to change the form of government to the Mayor-Council Form, as per Section 21-8-3 Mississippi Code Annotated, 1972, as amended, do you rely on the official 1980 government census figures or is it permissible to use later official government census figures to determine the population for purposes of holding the election?"

We preface this opinion by noting that Gulfport's present commission form of government in general and the "at large" method of electing commissioners in particular is the subject of litigation in Cause No. S 84-0662(N) in the U. S. District Court for the Southern District of Mississippi. Of course, any order from the Court as to what form of government must be used and as to the method of electing the municipal governing authorities would be controlling.

Therefore, we must refrain from any comment concerning the "at large" method of election and will restrict our opinion to the general procedure for changing from one form of government to another based on the provisions of Gulfport's special or private charter and the general laws of the State of Mississippi.

Absent a valid order from a court of competent jurisdiction, in order for a municipality operating under a private or special charter to change its from of government there must be authorization therefor in said charter or in the general laws of the State.

The City of Gulfport adopted the commission form of government as provided for by Chapter 108, Laws of Mississippi, 1908. See Section 1, Charter of Incorporation of the City of Gulfport.

Chapter 5, Title 21, Mississippi Code Annotated (1972) authorizes the adoption of the commission form of government by Municipalities and, in part, governs the operation of said form of government, Section 21-5-23 provides:

"Nothing in this chapter shall be construed in any way to affect, alter or modify the existence of municipalities now Operating under chapter 108 of the laws of 1908. Such municipalities shall continue to enjoy the form of government now enjoyed by them, and each shall be possessed of all rights, powers, privileges and immunities granted and conferred by chapter 108 of the laws of 1908. The mayor and commissioners of all municipalities now operating under chapter 108 of the laws of 1908 shall hold their offices for a term of four years, and until their successors are duly elected and qualified, The officers shall qualify and enter upon the discharge of their duties on the first Monday of July after such general election, and shall hold their office for four years, and until their successors are duly elected and qualified,"

Section 5, Chapter 108, Laws of 1908 provides:

"The charter shall set forth the facts of the original petition, and shall authorize the municipality to elect the officers therein named at the regular elections held for municipal officers. Said charter may be amended as to the number of commissioners, the time required of each, the amount paid each, and the bond to be made by each, and as to subordinate officers, by an election held for that purpose, at least three months before the regular election for municipal officers. If said election be carried, the clerk shall forward to the Governor a copy of the proposed amendment to the charter and the Governor shall issue a proclamation authorizing said amendment."

Section 10 of Gulfport's Charter provides:

"This Charter may be amended as to the number of commissioners, the time required for each, the amount of salary paid to each, and the bond required of each, and also to the subordinate officers by an election to be held for the purpose at least three months before the regular election for municipal officers. In any such election held for the purpose of amending this charter, if such proposed amendment shall receive a majority of the votes cast, the City Clerk of the City shall certify a copy of the amendment with the result of the election to the Governor, who shall thereupon issue his proclamation authorizing the said amendment."

The City of Gulfport clearly has the authority to amend its charter as to the number of commissioners to be elected.

However, we find no authority which would authorize or allow the governing authorities of the City of Gulfport to amend the charter so as to create election districts or wards as proposed in your letter.

Should the governing authorities of the City of Gulfport desire to amend the charter to increase the number of commissioners, it is the opinion of this office that such a proposition could not lawfully be presented to the municipal electors on the same ballot with the proposition of whether or not the City of Gulfport shall retain the present form of government or adopt the Mayor-Council form of government. In support of the above stated position we note that Section 21-8-3 which governs the manner of effecting the change to the Mayor-Council Form of Government provides in part:

"If it shall at any time appear from the certificate of the municipality clerk that said petition or petitions have been signed by the required number of qualified electors of said municipality, the mayor shall immediately refer the same to the municipality council or board and, if it shall appear that said petition or petitions are in proper form and have been sufficiently signed by the qualified electors of such municipality, the council or board shall within ten (10) days order and provide for the holding of a special election in such municipality not less than twenty (20) days nor more than sixty (60) days from the date of making such order, notice of which shall be given, and the same shall be held and conducted as other elections in such municipality. At such special election the propositions to be voted for shall be: (a) 'For the present form of government' and (b) 'For the mayor-council form of government'." (Emphasis added)

The above quoted statute having specifically stated the propositions that are to be voted on at the special election called for the purpose of deciding whether or not to adopt the Mayor-Council Form of Government, the governing authorities are not authorized to place additional propositions on the ballot.

In response to your alternate question on that point, as stated previously, the governing authorities clearly are authorized to amend the charter to increase the number of commissioners by submitting such a proposal to the municipal electors. The charter and Chapter 108, Laws of 1908 only require that such election be held "at least three months before the regular election for municipal officers." Assuming that requirement is met we know of no prohibition against such an election being held on the same day as an election on the Mayor-Council Form of Government.

We note that while increasing the number of commissioners would affect the municipal elections and would probably require a submission to the U. S. Justice Department before being implemented, it does not appear to be a change in the form of government. As previously stated, we find no authority to create election districts or wards in a Commission Form of Government.

Therefore should an election to expand the present Commission be conducted on the same day as the election on the Mayor-Council Form of Government, and further should it happen that both propositions pass, the election to change Gulfport's Municipal government to the Mayor-Council Form would prevail over the election to expand the present Commission Form of Government.

In response to your last question Section 21-3-3 provides in part:

"The manner of effecting the change in the government of any such municipality from the form of government under which it is operating to the mayor-council form of government shall be as follows:

One (1) or more petitions, similar in form and substance, addressed to the mayor, praying that an election be held to determine whether or not such city shall abandon its existing form of government and become organized under the mayor-council form of government, signed by at least ten percent (10%) of the qualified electors of such municipality, provided, however, that any municipality with population of less than forty thousand (40,000) shall be required to be signed by twenty percent (20%) shall be filed with the municipal clerk who shall, within ten (10) days thereafter, check the signatures thereto with the registration books of the municipality and attach thereto his certificate showing the total number of qualified electors in said municipality and the total number of signatures to said petitions and deliver the same to the mayor. Such petition or petitions shall specify the number of councilmen to be on the council and the number of councilmen to be elected from wards and the number at large, if any."

In response to your specific question, it is the opinion of this office that it is permissible to use current official government census figures to determine the population for the purpose of calling an election or the 1980 census if the City 50 decides.

Gulfport governing authorities may also use any other available data or information deemed appropriate in determining the population of the municipality.

Another possible alternative to the above would be to seek a declaratory judgment pursuant to Rule 57, Mississippi Rules of Civil Procedure.

Very truly yours,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY:

Phillip C. Carter Special Assistant Attorney General

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