Mississippi Advisory Opinions September 22, 2008: No. 2008-00522 (September 22, 2008)

Mississippi Attorney General Opinions

2008.

No. 2008-00522.

2008-00522

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Dear Ms. Munn:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Background

You state that one of the Copiah County School Board members whose term expires in January, 2011 passed away on September 4, 2008. You anticipate an interim appointment from the remaining members of the School Board in accordance with Mississippi Code Annotated Section 37-5-19 (Revised 2007). You state your presumption that a special election to fill the remainder of the term cannot be placed on the November, 2008 general election ballot. You note that there will not be a county general election in 2009.

Issues Presented

You ask how candidate qualification for the special election should be handled and whether the special election should be held with the municipal elections in 2009 or with the county general election in 2010. You also ask when a special election is to be held in the event that the school board is unable to agree on an interim appointment and that disagreement is certified to the election commission as provided for in Section 37-5-19.

Response

We agree with your conclusion that it is too late to have a special election for the vacancy in question on the November 2008 general election ballot.

Following an interim appointment by the remaining members of the school board, we are of the opinion that the special election to fill the remainder of the term would normally be held on the 2010 general election which is the next county general election. However, since the current term in question expires on the first Monday in January, 2011 and the regular election for a new term will be held in November, 2010, the interim appointee will serve out the remainder of the term and no special election will be necessary.

If the remaining members of the school board cannot agree on an interim appointment and that disagreement is certified to the county election commission, the special election would, in our opinion, be held on the special election day in 2009 which is the first Tuesday after the first Monday in November. Candidates would qualify in accordance with Section 23-15-839.

Applicable Law and Discussion

Section 37-5-19 provides for the filling of vacancies on county boards of education. The first paragraph sets forth the procedure for conducting a special election to fill the remainder of the term in the instance where the remaining members of the school board make an interim appointment. The second paragraph sets forth the procedure for conducting a special election in the instance where the remaining members cannot agree on an interim appointment.

Section 37-5-19 provides:

Vacancies in the membership of the county board of education shall be filled by appointment, within 60 days after the vacancy occurs, by the remaining members of the county board of education. Said appointee shall be selected from the qualified electors of the district in which the vacancy occurs, and shall serve until the first Monday of January next succeeding the next general election, at which general election a member shall be elected to fill the remainder of the unexpired term in the same manner and with the same qualifications applicable to the election of a member for the full term.

In the event the vacancy occurs more than five months prior to the next general election and the remaining members of the county board of education are unable to agree upon an individual to be appointed, any two of the remaining members may certify such disagreement to the county election commission. Upon the receipt of such a certificate by the county election commission, or any member thereof, the commission shall hold a special election to fill the vacancy, which said election, notice thereof and ballot shall be controlled by the laws concerning special elections to fill vacancies in county or county district offices. The person elected at such a special election shall serve for the remainder of the unexpired term. (emphasis added)

Section 37-5-9 sets forth the procedure for candidates to qualify for membership on a county board of education for a regular full term. It provides in part:

The name of any qualified elector who is a candidate for the county board of education shall be placed on the ballot used in the general elections by the county election commissioners, provided that the candidate files with the county election commissioners, not more than ninety (90) days and not less than sixty (60) days prior to the date of such general election, a petition of nomination signed by not less than fifty (50) qualified electors of the county residing within each supervisors district. ***.

Generally, when an interim appointment to fill the vacancy has been made by the remaining members of the school board, Section 37-5-19 requires that candidates in a special election to fill a vacancy on a county board of education qualify in the same manner applicable to the election of a member for the full term. Therefore, a candidate must file his petition of nomination with the county election commission not more than ninety (90) days and not less than sixty (60) days prior to the date of the special election. The petition must be signed by not less than fifty (50) qualified electors. However, in the instant case the next general election will be conducted in 2010 and the current term expires in January, 2011. Therefore, a special election will not be necessary.

If the remaining members of the school board cannot agree on an interim appointment, the special election to fill the vacancy must be held in accordance with the general statute on filling vacancies in county and county district offices.

Section 23-15-839 sets forth the general procedure for conducting special elections to fill vacancies in county and county district offices. It provides in part:

***. Such vacancies shall be filled for the unexpired term by the qualified electors at the next regular special election day occurring more than ninety (90) days after the occurrence of the vacancy. ***. The election commissioners shall require each candidate to qualify at least sixty (60) days before the date of the election, and shall give a certificate of election to the person elected. ***.

Section 23-15-833 designates the first Tuesday after the first Monday of November of each year as the regular special election day.

Conclusion

If the remaining members of the school board make an interim appointment, the appointee will serve the remainder of the term without the necessity of conducting a special election.

If the remaining members of the school board cannot agree on an interim appointment and that disagreement is certified to the county election commission, a special election to fill the vacancy for the remainder of the current term must be conducted on the special election day in November, 2009 in accordance with Sections 23-15-833 and -839.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General