Mississippi Advisory Opinions February 28, 2001: AGO 000014256 (February 28, 2001)

AGO 000014256.

Dear Ms. Howell:

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

You state the following facts:

In 1997 two individuals filed statements of intent to declare their candidacy for the Republican Party nomination for the office of Municipal Republican Executive Committee Member. Their names were not placed on the 1997 primary ballot for election.

A meeting is scheduled to be held in another city other than Ocean Springs to appoint a temporary committee. Publication of the meeting has not been made.

You then present five (5) questions which we will state and respond to in the sequence presented.

Question 1: Since the law requires that an executive committee have the same number of members as there are elected officials, are these two individuals "automatically elected" without appearing on the ballot? Do they have the authority to fill the remaining vacancies on a Municipal Executive Committee? If so, are these individuals considered a permanent committee in place, therefore eligible to conduct the 2001 primary elections? If not must a mass meeting be held in accordance with Sections 23-15-313 and -315 to form a temporary executive committee?

Response: In our opinion addressed to Harold S. Jackson, Esquire, dated May 12, 1993 (copy enclosed) we said that individuals who filed their statements of intent as candidates for membership on a party executive committee are entitled to be certified as elected to said committee. Compare Miss. Code Ann. Section 23-26-309(5).

Insofar as filling vacancies on a party executive committee is concerned, Mississippi Code Annotated, Section 23-15-171 (Revised 1990) provides for the establishment of committees and specifically says that vacancies in an executive committee shall be filled by it.

Based on the facts stated in your letter and the above cited opinion, the two individuals who filed their statement of intent as candidates for membership on the Ocean Springs Municipal Republican Executive Committee were, in our opinion, duly elected to membership on said committee and were entitled to be certified as winners of the election by the executive committee at that time. It is our further opinion that their election cannot be abrogated now by the failure to have a full committee in place. To say that those duly elected members could not act to fill the vacancies on the committee would make their election a nullity. Therefore, it is the opinion of this office that the two members in question have full authority to fill the vacancies on said party committee. After such vacancies have been filled, the committee would be authorized to conduct a 2001 municipal primary for the party.

Question 2: Is this a valid meeting? If this is not a valid meeting, must the candidates who have already filed their statement of intent to run in the party primary withdraw their intent and run as independents?

Response: In order for a meeting to select a temporary municipal party executive committee to be valid, there must be no existing committee. As indicated in our response to your first question, upon the filling of the vacancies by the two duly elected members, a committee would be in place and would be authorized to conduct a 2001 primary for the Republican Party. We also note that it does not appear that the publication requirements of Section 23-15-315 could be complied with even if there was no committee in place.

Question 3: Must the municipal executive committee members file statements of intent and be placed on the ballot whether or not they are unopposed? If they are not placed on the ballot, can these same committee members (whether it be one or more) by filing their statement of intent be considered permanent and then serve as de facto members that will hold over to serve as future committee members, thus avoiding the requirements to hold a mass meeting according to Sections 23-15-313 and -315?

Response: Candidates for membership on a municipal party executive committee must file their statement of intent. As stated in your letter, the number of members that are to be on such committee is determined by the number of elected officials in a particular municipality. If that number of candidates (or less) file statements of intent they would be elected without having their names on the primary ballot. If more than that number file statements of intent, the names of all candidates would have to appear on the ballot in order for a legitimate committee to be elected. Members elected at a municipal primary would serve on their party's executive committee for the ensuing term and would conduct the next primary for their party. For documentation purposes, we suggest that the names of unopposed candidates for committee membership be placed on the ballot if one is going to be printed for contested elections for a regular municipal office.

Question 4: Is it permissible to publish notice of a mass meeting at this late date and hold the meeting after the qualifying deadline expires?

Response: No. Section 23-15-309 sets forth the procedure for qualifying as a candidate in a municipal primary. Paragraph (3) of that code section requires the municipal clerk to "promptly supply all necessary information and pay over all fees so received to the secretary of the proper municipal executive committee." Therefore, a party executive committee must be in place on the qualifying deadline so the municipal clerk can "promptly" turn the fees and statements of intent over to said committee.

Question 5: Is it permissible for the two members who filed statements of intent in 1997 to call a meeting (without proper notice) and to make appointments to the committee?

Response: An executive committee of a political party does not appear to be a public body for purposes of the Mississippi Open Meetings Act which requires meetings of public bodies to be held in public and has certain notice requirements. The two members in question would have the discretion to give notice through the local media and make their appointments in a public meeting.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General