Mississippi Advisory Opinions April 11, 1997: AGO 000011924 (April 11, 1997)

AGO 000011924.

Dear Dr. Burnham:

Attorney General Mike Moore has received your request for an official opinion of this office and has assigned it to me for a reply. In your letter you state in pertinent part:

The North Panola School District was organized as a consolidated school district. Four members of the North Panola School Board resigned prior to the state's intervention in the district; the fifth member of the board was unable to obtain a bond. On March 8, 1996, a state appointed conservator assumed control of the North Panola School District pursuant to the emergency provisions of Miss. Code Ann. Section 37-17-6 subsection (14). Subsequently, on June 21, 1996, the State Board of Education abolished the district in accord with the mandate of 37-17-13 subsection (1). The schools of the former district are presently under the control of the State Board and its appointed conservator.

The Mississippi Board of Education now feels that it is time to assess whether or not the impairments in this district have been substantially corrected in accord with subsection (3) of 37-17-13. If it is determined that the impairments which lead to the emergency conservatorship and abolition of the district are substantially corrected, then the law provides that the State Board of Education will reconstitute the district and in appropriate cases call for the selection of school board members in the manner provided by law.

The Mississippi Board of Education respectfully requests an opinion from your office as to how and by what method or methods may the State Board request an election of school board members so as to reconstitute the North Panola School District?

Section 37-17-13(3), Miss. Code Ann. states:

After a school district is abolished under this section, at such time as the State Board of Education determines that the impairments have been substantially corrected, the State Board of Education shall reconstitute, reorganize or change or alter the boundaries of the previously existing district; provided, however, that no partition or assignment of territory formerly included in the abolished district to one or more other school districts may be made by the State Board of Education without the consent of the school board of the school district to which such territory is to be transferred, such consent to be spread upon its minutes. At that time, the State Board of Education, in appropriate cases, shall notify the appropriate governing authority or authorities of its action and request them to provide for the election or appointment of school board members and a superintendent or superintendents to govern the district or districts affected, in the manner provided by law.

Section 37-7-207(1) sets forth the method by which a school district that is reconstituted or created as a single member district shall provide for the election of trustees. It states, in pertinent part:

On the first Tuesday after the first Monday in November, in any year in which any consolidated school district shall elect to utilize the authority to create single member election districts, an election shall be held in each such district in this state for the purpose of electing the board of trustees of such district.... [M]embers shall be elected at general elections as vacancies occur for terms of five (5) years each. Trustees elected from single member election districts as provided above shall otherwise be elected as provided for in Sections 37-7-223 through 37-7-229.... All vacancies which may occur during a term shall be filled by appointment of the consolidated school district trustees, but the person so appointed shall serve only until the next general election following such appointment, at which time a person shall be elected for the remainder of the unexpired term at the same time and in the same manner as a trustee is elected for the full term then expiring....

Section 37-7-223 provides:

All elections of consolidated or consolidated line school district trustees shall be held on the first Tuesday after the first Monday in November of each year in the same manner as general state and county elections are held and conducted.

Section 103, Miss. Const. of 1890, states:

In all cases, not otherwise provided for in this constitution, the legislature may determine the mode of filling all vacancies, in all offices, and in cases of emergency provisional appointments may be made by the governor, to continue until the vacancy is regularly filled; and the legislature shall provide suitable compensation for all officers, and shall define their respective powers.

The situation you present is an unusual one. North Panola Consolidated School District was abolished pursuant to Section 37-17-6(14). Once the State Board of Education determines that the impairments have been removed, the school district will be reconstituted, subject to the Governor declaring that the state of emergency no longer exists as provided in Senate Bill 2460 of the 1997 Legislative Session. Upon reconstitution, there will be vacant offices. Vacancies in a consolidated school district are to be filled by appointment by the remaining trustees. Since there are no trustees in office, the question becomes how are the vacancies to be filled. There is no provision for a special election to be held to fill these vacancies.

Pursuant to Section 37-7-207, when a school district is reconstituted as a single member district, the first board of trustees shall be appointed by the county board of education. The county board of education for North Panola was abolished. Therefore, there is no appointing entity for purposes of Section 37-7-207. Section 37-7-207 also provides that the first Monday in November of the year in which a district is reconstituted as a single member district a board of trustees will be elected to staggered terms as set forth in the statute.

Since there is no method provided by law to fill the vacancies of the reconstituted school district prior to the November, 1997 election, it will fall to the Governor to make emergency provisional appointments, pursuant to Section 103, Mississippi Constitution of 1890. The gubernatorial appointments will serve until the board of trustees that are elected in November, 1997, take office on January 1, 1998. The November election will be conducted by the county election officials as provided in Section 37-7-225.

If this office can be of any further assistance, please let us know.

Very truly yours,

MIKE MOORE,

ATTORNEY GENERAL

By: Sandra M. Shelson

Special Assistant Attorney General