Mississippi Advisory Opinions February 14, 1989: AGO 000008687 (February 14, 1989)

AGO 000008687.

Dear Mayor Evers:

Attorney General Mike Moore has received your letter requesting an opinion and has assigned it to me for research and reply.

Your letter states as follows:

The City of Fayette is again short of a member on the Board of Aldermen due to the resignation of Alderman Clyde Cadney. We just filled two (2) vacancies in December, 1988 with a Special Election and a Run-Off Special Election.

Our immediate question is two-fold. Is the City of Fayette required to have another election since our regular primary is going to be held in May of this year, or can the Mayor and Board appoint someone to fill this vacancy. All present members term will expire on June 30th of this year.

Section 23-15-857, Miss. Code Ann. (Supp. 1988) governs the filling of vacancies in municipal elective offices. This statute provides in part as follows:

Section 23-15-857. Appointments to fill vacancies in city, town, or village offices; elections to fill such offices; procedure where no person or only one person has qualified as candidate.

(1) When it shall happen that there is any vacancy in a city, town or village office which is elective the unexpired term of which shall not exceed six (6) months, the same shall be filled by appointment by the governing authority or remainder of the governing authority of said city, town or village. The municipal clerk shall certify to the Secretary of State the fact of such appointment, and the person or persons so appointed shall be commissioned by the Governor.

(2) When it shall happen that there is any vacancy in an elective office in a city, town or village the unexpired term of which shall exceed six (6) months, the governing authority or remainder of the governing authority of an election to be held in such city, town or village to fill the vacancy and fix a date upon which election shall be held. Such order shall be made and entered upon the minutes at the next regular meeting of the governing authority after such vacancy shall have occurred, or at a special meeting to be held not later than ten (10) days after such vacancy shall have occurred, Saturdays, Sundays and legal holidays excluded, whichever shall occur first. Such election shall be held on a date not less than thirty (30) days nor more than forty-five (45) days after the date upon which the order is adopted.

If the vacancy occurred after January 1, 1989, then such vacancy can be filled by appointment by the governing authorities of the municipality according to law, since the remainder of the unexpired term would be less than six (6) months. However, if prior to January 1, 1989, the board adjudicated the existence of a vacancy, such being more than six (6) months before the expiration of the unexpired term, then a special election should be held to fill the vacancy in accordance with Section 23-15-857, supra.

We hope that the above is responsive to your inquiry. If we can be of further assistance, please do not hesitate to contact this office.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By: Giles W. Bryant Special Assistant Attorney General

/jw