Mississippi Advisory Opinions January 26, 2001: AGO 000014197 (January 26, 2001)

AGO 000014197.

Dear Mr. Miller:

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

It appears that on or about November 3, 2000, a municipal election commissioner informed a deputy town clerk that the commissioner was resigning so the commissioner could run for an aldermanic post in the 2001 elections. That information was relayed by telephone and the deputy clerk was advised that a letter of resignation would be forthcoming. As of January 9, 2001, the written resignation had not been received. Prior to January 8, 2001, the Minutes of the Town Board meetings are silent about any resignation.

Your prior opinion numbered 98-0750 answered the question of "when and to whom your resignation as Election Commissioner must be tendered." The response was that the "resignation must be given to the Board of Supervisors prior to January 1...." That opinion applied to a county election commissioner. Would a municipal election commissioner submit the resignation to the municipal governing authority?

Next, in what form must the resignation "be given?" I assume the resignation must be given to the Mayor and Board of Aldermen, but what form must the resignation take? Can the resignation simply be verbal or must it be written?

Next, can the resignation, if not in writing, be simply called in by phone and, if so, to whom must the resignation be delivered and what, if any, action needs to appear on the Minutes of the meetings of the Mayor and Board and when, if ever, must that action appear on the Minutes, i.e., before or after January 1?

Next, can the commissioner now, after January 1, tender a letter which confirms the resignation as of November 3, 2000, and if so, will that confirmation letter allow that person to run for a town elected position?

In response to your inquiry, Mississippi Code Annotated, Section 23-15-217 (1) (Supp. 2000) provides:

A commissioner of election of any county may be a candidate for any other office at any election held or to be held during the four-year term for which he has been elected to the office of commissioner of election or with reference to which he has acted as such; provided that he has resigned from the office of election commissioner before January 1 of the year in which he desires to seek the office.

By prior opinion we have said that the statutory restrictions on county election commissioners being candidates for another office during their current term would apply to municipal election commissioners who seek a municipal office. MS AG Op., Keyes (December 13, 1991). It follows that a municipal election commissioner would be required to submit his resignation to the municipal governing authorities which, in this instance, would be the mayor and board of aldermen.

The above quoted code section clearly requires a definitive resignation prior to January 1 of the year in which a commissioner desires to seek another office. A "verbal resignation," in our opinion, would not satisfy that statutory requirement. Therefore, we are of the opinion that the resignation should be written.

The appearance of the resignation must appear on the official minutes in order for a vacancy to be declared and filled in accordance with the law. However, we know of nothing that would require such action to appear on the minutes prior to January 1, as long as the resignation was effective, and not withdrawn, prior to such date.

Finally, we have expressed our opinion that the resignation should be in writing and must be submitted to the municipal governing authorities prior to January 1, 2001 in order for the resigning commissioner to be a candidate for a municipal office in 2001. A letter submitted after January 1 confirming a November 3, 2000 "verbal resignation" would not, in our opinion, be sufficient to allow a commissioner to be a candidate in the 2001 municipal elections. In any case, whether the person has effectively and timely resigned in accordance with Section 23-15-217(1) is a question of fact to be determined by the election commission.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General