Mississippi Advisory Opinions January 06, 1993: AGO 000006505 (January 6, 1993)

AGO 000006505.

Dear Mrs. Berkley:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

"I request an official Attorney General's opinion on the following problem:

A special election was held November 3, 1992 in conjunction with the General Election, to elect a school board member in District 3, Franklin County.

The vacancy occurred early and was filled, by appointment of the school board, until a special election could be held. (Code 37-5-19 paragraph 1).

The person elected November 3, 1992, and duly certified by the County Election Commission, was Mrs. Carla Smallwood. She would have been sworn in in January to fill the unexpired term. This position would have come up for election at the November General Election to take office in January 1995. Mrs. Smallwood was killed in a car accident on December 11, 1992.

According to my understanding of Code 37-5-19:

1) It is the responsibility of the remaining 4 school board members to select a qualified elector of District 3 to fill the vacancy. There are 5 members on the school board since the previously appointed member is still in office until January. Is this person to be involved in the selection process?

2) Person appointed would serve until the next General Election. No General Election is scheduled in 1993. Does this mean that person appointed will serve until January 1995?

3) If two members on the school board disagree with suggest appointee, this is certified to the Election Commission and a Special Election will be held."

Mississippi Code Annotated Section 37-5-19 (Revised 1990) provides:

"Vacancies in the membership of the county board of education shall be filled by appointment, within 60 days after the vacancy occurs, by the remaining members of the county board of education. Said appointee shall be selected from the qualified electors of the district in which the vacancy occurs, and shall serve until the first Monday of January next succeeding the next general election, at which general election a member shall be elected to fill the remainder of the unexpired term in the same manner and with the same qualifications applicable to the election of a member for the full term.

In the event the vacancy occurs more than five months prior to the next general election and the remaining members of the county board of education are unable to agree upon an individual to be appointed, any two of the remaining members may certify such disagreement to the county election commission. Upon the receipt of such a certificate by the county election commission, or any member thereof, the commission shall hold a special election to fill the vacancy, which said election, notice thereof and ballot shall be controlled by the laws concerning special elections to fill vacancies in county or county district offices. The person elected at such a special election shall serve for the remainder of the unexpired term."

In response to your first question, we have previously opined that by virtue of Sections 136 and 138 of the Mississippi Constitution of 1890, county school board members have the authority to hold over until their successors are elected and duly qualified to assume the duties of the office. See opinion addressed to Ms. Peggy H. Staten, dated January 26, 1989 (copy enclosed). It is our further opinion that an interim appointee who is appointed to serve until the first Monday of January following the special election to fill the vacancy in accordance with Section 37-5-19 would likewise be authorized to hold over until his successor is selected and qualified to assume the duties. Therefore, the interim appointee whose term expired on January 4, 1993 is entitled to continue to served on the school board until the vacancy is again filled by the board in accordance with Section 37-5-19. However, in order to avoid any possible conflict of interest, it is suggested that said interim appointee not participate in the filling of the vacancy.

In response to your second question, we concur with your conclusion that since there will be no general election in 1993, the person appointed to fill the vacancy will serve until January, 1995.

In response to your third question, it is our opinion that if two (2) members of the board disagree with the suggested appointee and they certify said disagreement to the county election commission, the interim appointee would be authorized to hold over until a special election is held in accordance with Section 37-5-19.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY:

Phil Carter Assistant Attorney General

PC:mfd Enclosure