Mississippi Advisory Opinions June 27, 2005: AGO 000016648 (June 27, 2005)

AGO 000016648.

Dear Mr Baker:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. Your letter reads as follows:

No one qualified as a candidate for the office of Alderman for Ward 5 for the City of Brandon in the General Election held on June 7, 2005. Inasmuch as no one will qualify and enter upon the discharge of duties for this office on the first Monday in July after the General Election, it is my understanding that the governing authorities of the City of Brandon will be required to call a Special Election to fill this office. My questions are as follows:

1. In accordance with Section 21-15-1 does the current Alderman for Ward 5 hold over after the regular term of office expires on the first Monday in July 2005, until such time as her successor is elected and qualified.

2. If the answer to question no. 1 is in the affirmative, please advise if action taken by her during this hold over period would be valid and binding official acts.

3. Do the provisions of MCA Section 23-15-857 control the procedure for a Special Election in this instance.

Our office addressed this situation most recently in MS AG Op., Craft (April 27, 2001) (enclosed). We advised in that opinion, as we do now, that where no candidate qualified for office for the municipal General Election that a vacancy would exist after the term for the current alderman ends. Such vacancy must be filled in accordance Miss. Code Ann. Section 23-15-857 (1972). In accordance with Miss. Code Ann. Section 25-1-7 (1972), the current alderman may "hold-over" in office, and Miss. Code Ann. Section 25-1-37 (1972) provides that the official acts of the hold-over alderman would be valid and binding.

Additionally, please be advised that the municipal governing authorities must submit the date they establish for the special election to the U.S. Justice Department for preclearance under the Voting Rights Act of 1965.

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Reese Partridge

Special Assistant Attorney General