Mississippi Advisory Opinions May 24, 2001: AGO 000014465 (May 24, 2001)

AGO 000014465.

Dear Dr. Truly:

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

On Tuesday, April 3, 2001 Alderman Robbie Johnson, Ward 6 of Canton, Ms. vacated his office. Our municipal election was scheduled for May 1, 2001 with the general election scheduled for June 5, 2001. It is our understanding that a municipality has the statutory authority to appoint someone to the vacated office if the vacancy took place within six months of the expired term which in this case would have been June 30, 2001. However, if the vacancy was longer than six months then it is my understanding that the municipality has the statutory authority to call for a municipal election.

Please advise me as to whether or not the legislature gives municipalities statutory authority to appoint or elect an alderman into office when that office becomes vacant within six months of the expired term under the particular circumstance where the city votes for its municipality to redistrict and instructs its city attorneys to enjoin the municipality. Thus, effectively delaying the election for an indefinite period of time. Please be informed that the vacancy and the vote for redistricting and judicial delay took place April 3, 2001. My conclusion is that it would be in the best interest of the populace of Ward 6 to elect its representative while the city is in the process of redistricting and attempting to set a new election date.

Mississippi Code Annotated, Section 21-15-1 (Revised 1990) prescribes the term of office for elected municipal officials. It provides:

All officers elected at the general municipal election provided for in Section 21-11-7, shall qualify and enter upon the discharge of their duties on the first Monday of July after such general election, and shall hold their offices for a term of four (4) years and until their successors are duly elected and qualified.

Section 23-15-857 (1) provides:

When it shall happen that there is any vacancy in a city, town or village office which is elective the unexpired term of which shall not exceed six (6) months, the same shall be filled by appointment by the governing authority or remainder of the governing authority of said city, town or village. The municipal clerk shall certify to the Secretary of State the fact of such appointment, and the person or persons so appointed shall be commissioned by the Governor.

Section 21-15-1 sets the term of office of municipal elected officials at four (4) years and provides that those officials shall serve for that term and until their successors are elected and qualified. The fact that municipal elections may be delayed beyond the end of the current four year term does not, in our opinion, extend the term. It simply means that the incumbent officials will hold over and continue to serve into the next term until their successors are elected and qualified.

In response to your inquiry and based on the above, we are of the opinion that the vacancy in question must be filled by appointment in accordance with Section 23-15-857 (1). We find no authority to call a special election to fill the vacancy even if a court of competent jurisdiction were to order a delay in conducting the regularly scheduled election, unless the court were to specifically address the issue.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General