Mississippi Advisory Opinions May 30, 2003: AGO 000015640 (May 30, 2003)

AGO 000015640.

Dear Mr.McFatter:

Attorney General Mike Moore has received your request for an official opinion and has assigned it to me for research and response. Your letter, on behalf of the Town of Port Gibson, explains that the Board of Mayor and Aldermen have been presented with two petitions, signed by the requisite number of citizens, calling for amendments to the special charter. You also ask other questions related to the municipal charter. Your letter is quite lengthy, so is attached for reference.

We will first address that portion of your request related to the proposed charter amendments. The two amendments proposed by the citizens provide as follows:

Proposition One: Requirement for Runoff Election. If three (3) or more candidates are on the ballot for any election office in the general election and no candidate receives a majority (50%+1) of the votes cast in the election, a runoff election between candidates with the two (2) highest vote tallies must be held.

Proposition Two: Residency Requirement: Any candidate for any elective office must have resided within the City at least one full year prior to qualifying as a candidate for such office and the City must have been the potential candidate's primary residence for that one year period.

You ask whether the proposed amendments are consistent with the laws and Constitution of the State of Mississippi, and if not, whether the municipality is required to proceed with publication of the amendments under Section 21-17-11.

* * * * *

Turning first to Proposition One, the City of Port Gibson has a special charter which contains its own procedures for conducting the election of municipal officers and the number of votes required to elect a candidate to office. While Section 21-17-5(2)(c) prohibits a municipality from using its home rule power to change the "requirements, practices or procedures for municipal elections....," we read this language to prohibit municipalities subject to the state election code from making any changes to election requirements, practices or procedures. Thus, we are of the opinion that Section 21-17-5(2)(c) does not prohibit a municipality operating under a special charter having its own provisions for conducting municipal elections from following appropriate statutory authority (Section 21-17-11) in seeking to amend its charter with regard to those election provisions.

With regard to Proposition Two, as you note in your letter, we have recently issued an opinion which we opined that Section 250 of the Mississippi Constitution of 1890 prohibited the governing authorities from amending a municipal special charter to place additional requirements on municipal elected officials. MS AG Op., Prospere (March 10, 2003). Section 250 provides that:

All qualified electors and no others shall be eligible to office, except as otherwise provided in this Constitution; provided, however, that as to an office where no other qualification than that of being a qualified elector is provided by this Constitution, the legislature may, by law, fix additional qualifications for such office.

You also mention the prohibitions contained in Section 21-15-2 of the Mississippi Code, which currently reads as follows:

No municipality shall impose any additional requirements on holding any municipal elective office or receiving compensation for any elective office except as may be provided by law.

Section 21-15-2 was amended during the 2003 Legislative Session to clarify that it is specifically applicable to municipalities operating under special charters. This change becomes effective October 1, 2003, and would thus not presently be applicable to the Town of Port Gibson. However, as Section 250 currently limits the power of municipal governing authorities operating under special charters to change the qualifications for holding office, there is no need to rely on Section 21-15-2.

Thus in response to your first question, we are of the opinion that the proposed amendment contained in Proposition One is consistent with the laws and Constitution of the State of Mississippi, while the amendment contained in Proposition Two would not be consistent with state laws or the state Constitution. Your second question concerns the necessity to conduct an election on a proposed amendment that is not consistent with the laws and Constitution of the State of Mississippi. We are of the opinion that the City of Port Gibson is under no obligation to advertise and conduct an election on such a proposal, as such action and any expenses related to that action would be moot. Finally, as you have advised that the residency requirement contained in your special charter was found to be unconstitutional by a court of competent jurisdiction, and that no other residency requirement was ever established by the governing authorities of the City of Port Gibson, it is our opinion that the general law with regard to residency of candidates for elective office would be applicable. Candidates must be qualified electors of the municipality in order to run for municipal office.

If our office may be of further assistance, please advise.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Heather P. Wagner

Assistant Attorney General