Mississippi Advisory Opinions January 04, 1996: AGO 000010933 (January 4, 1996)

AGO 000010933.

Dear Senator Walls:

Attorney General Mike Moore has received your recent letter in your capacity as a member of the Mississippi State Senate and has asked me to respond. Your letter states:

The city of Greenville operates pursuant to a private charter. It is a weak mayor form of government with a Mayor and six (6) council members who are elected from four single member wards and two (2) super wards composed by combining wards 3 and 2 to form Super ward 5 and wards 3 and 4 to form Super ward 6. The council members are elected for four (4) year staggered terms. On the recent December 16, General election we elected the Mayor and council members for wards 1 and 2 and super ward 6. The council members for wards 3 and 4 and super ward 5 are to serve until the elections in December, 1997; however, ward 3 is being vacated by the Mayor-elect.

The first meeting of the council for the new term (New Mayor's Administration) is by charter required to be held on the first Monday in January following the December General election. Since the first Monday in January, 1996, falls on New Year's day, the meeting is scheduled to be held on January 2, 1996, the first Tuesday. The Mayor-elect has announced that he will resign his council seat effective January 2, 1996.

I need an opinion from you regarding the following issues. First, does Section 23-15-857 of the Mississippi Code of 1972, as amended, which provides for the filling of vacancies take precedence over any provisions of the private charter which provide for a different time period than the statute? Secondly, on January 2, 1996, will the new council be limited in its responsibilities and duties to appoint all department heads because a vacancy will exist due to one of its members being sworn in as Mayor and resigning his council seat?

As the attached opinion to Betsy Phillips, June 9, 1993, states, provisions of a special or private charter that are contrary to general statutory provisions are viewed by this office as exceptions to the statutory provisions except where the general statutes expressly provide otherwise. In that opinion we stated that a charter provision which requires the mayor to appoint a registrar of voters would be controlling over the general statutory provision that the city clerk also acts as the municipal registrar. In the enclosed opinion to Kenner Ellis, March 21, 1988, we stated that the provisions of the private charter of Greenville concerning the posting of surety bonds by its officers and employees control over the general statutes on the subject.

The provisions of the private charter of Greenville concerning procedures for filling vacancies take precedence where there is a conflict with the provisions of Section 23-15-857, the general statute which provides for the filling of vacancies.

As you know, this office does not by official opinion comment on private charters. Absent any specific provision in the private charter to the contrary, the new council is not limited in its duties and responsibilities to appoint all department heads at its first meeting on January 2, 1996, even though a vacancy will exist. We assume that the private charter defines what constitutes a quorum.

If we may be of any further assistance, please let us know.

Sincerely,

MIKE MOORE,

ATTORNEY GENERAL

By: Alice Wise

Special Assistant Attorney General