Mississippi Advisory Opinions May 30, 2003: AGO 000015644 (May 30, 2003)

AGO 000015644.

Dear Mr. Alexander:

Attorney General Mike Moore has received your request for an official opinion and has assigned it to me for research and response. Your request is made on behalf of the City of Greenville, Mississippi. You present the following facts and questions for our consideration.

On May 12, 2003, William C. Burnley, the City Council member representing Ward 1 of the City, passed away. At the time of his death, more than 6 months remained on his term of office. The City of Greenville is a "special charter" municipality, and Section 2-6 of the City Charter provides that, in such cases, a special election shall be held "within thirty (30) days from the date such vacancy occurs." It is anticipated that, at its regular meeting on May 20, 2003, the City Council will declare the Ward 1 seat to be vacant, and set a special election pursuant to Section 2-6. As the Charter is silent regarding the notice to be given, the City will provide notice pursuant to Miss. Code Ann. Section 23-15-857, posting the Notice at three public places and publishing the notice three times in the local newspaper.

There is a slight conflict between the provisions of the City Charter, requiring the election to be held within thirty (30) days of the vacancy, and the provisions of Section 23-15-857, requiring publication of the first notice "at least thirty (30) days before the date of such election." Miss. Code Ann. Section 23-15-859, on the other hand, which addresses special elections held by municipalities pursuant to "any statute," authorizes a special election to be held not "less than twenty-one (21) nor more than thirty (30) days after the date upon which [the resolution authorizing the election] is adopted. . . ." This statute likewise provides for three weeks publication.

In view of these somewhat conflicting provisions, and keeping in minds that the City Charter is the City's primary authority, it is anticipated that the City will set the special election for Monday, June 16, 2003, which will be twenty-seven (27) days after the vacancy is declared on May 20th. Publication will occur May 25, June 1, and June 8.

The City requests an opinion regarding the propriety under the above facts of setting the special election for Ward 1 City Council position on Monday, June 16, 2003, with publication dates of May 25, June 1 and June 8, 2003.

The City further requests an opinion whether it would be permissible, in the event only one person shall have qualified as a candidate nine days prior to the date of the election, for the City to dispense with the election and appoint the one candidate in lieu of an election. As the City Charter is silent on this issue, the City presumes that the above-referenced Code section would control.

* * * * *

In response to your first question, Section 23-15-857 provides that municipal special elections to fill vacancies shall be held on a date "not less than thirty (30) days nor more than forty-five (45) days" after the date upon which the order setting the election is adopted. As you mention, Section 23-15-859 contains different time requirements for holding municipal special elections, but only where there is no other more specific time prescribed. However, it is the opinion of this office that as the Special Charter of the City of Greenville contains provisions which establish the time frame in which a special election to fill a vacancy shall be held, there is no need to refer to general law, and the provisions of the Charter would control. MS AG Op., Walls (January 4, 1996). The determination to hold the election 27 days after declaring the vacancy fits within the time frame in the charter which requires such election to be held within thirty days from the date the vacancy occurred. Although June 16, 2003, is in actuality more than thirty days after the death of the council member on May 12, 2003, the vacancy did not officially exist until May 20, when it was declared by the remaining members of the Council.

With regard to the publication aspect of your inquiry, when a municipality's special charter is silent on a particular issue, general law as it relates to municipalities should be followed. In fact, Section 23-15-559 provides that Section 23-15-859 shall be applicable to municipalities operating under special charters, except in cases where there exists a conflict between the statute and the provisions of the charter. Section 23-15-859 provides as follows:

Whenever under any statute a special election is required or authorized to be held in any municipality, and the statute authorizing or requiring such election does not specify the time within which such election shall be called, or the notice which shall be given thereof, the governing authorities of the municipality shall, by resolution, fix a date upon which such election shall be held. Such date shall not be less than twenty-one (21) nor more than thirty (30) days after the date upon which such resolution is adopted, and not less than three (3) weeks' notice of such election shall be given by the clerk by a notice published in a newspaper published in the municipality once each week for three (3) weeks next preceding the date of such election, and by posting a copy of such notice at three (3) public places in such municipality. [emphasis added.]

The City of Greenville's special charter provides for a special election to fill a vacancy in a municipal office. While providing a time frame in which to hold the election, the charter is silent as to the proper publication of such election. We are of the opinion that using Section 23-15-859 as guidance on the question of publication is reasonable and within the authority of the governing authorities of the City of Greenville.

In response to your last question, you advise that the Special Charter of the City of Greenville is silent on the question of the qualification deadline for a special election to fill a vacancy, and is also silent as to the procedure to follow in the eventuality that only one person qualifies as a candidate. Miss. Code Ann. Section 23-15-857 provides that the qualification deadline for a special municipal election to fill a vacancy is 5 p.m. on the 10th day before the date set for the election. It further provides that if only one person has qualified as a candidate as of the 9th- day before the election, the governing authorities may dispense with the requirement to conduct the election and appoint that candidate to fill the vacancy. As we stated above, it is the opinion of this office that utilizing state general law applicable to municipal special elections to resolve questions when a municipal charter is silent is within the authority of the governing authorities. Thus, if only one person qualifies to run for that office as of the day after the date established for qualification, the governing authorities of the City of Greenville would have the authority to fill the vacancy by appointment of the person who has qualified, without having the election.

Please be aware that the above actions related to the setting of a special election would be subject to administrative review by the U.S. Department of Justice pursuant to Section 5 of the Voting Rights Act of 1965.

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

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Heather P. Wagner

Assistant Attorney General