Mississippi Advisory Opinions November 08, 2010: No. 2010-00614 (November 8, 2010)

No. 2010-00614.

Dear Mr. Walker:

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

You present two issues which we will address separately.

You state that one of the members of the Leland School District Board of Trustees whose term expires in January, 2011 is not seeking re-election and that other members of the Board asked him to stay on until the vacancy is filled which, we assume, means that no candidate will be on the November ballot seeking the office. You then ask how long can he remain on the Board.

The board member in question is only entitled to remain in office until the expiration of his current term.

In our opinion to H. Donald Brock, Jr., Esquire, dated January 19, 2010 we said:

Mississippi Code Annotated Section 25-1-7 (Revised 2006) provides:

If any person elected or appointed to any state, state district, levee board, county, county district, or municipal office shall fail to qualify as required by law on or before the day of the commencement of his term of office, or for any cause any such officer shall hold over after his regular term of office expires under the authority given him to hold over until his successor is appointed or elected and qualified, a vacancy in such office shall occur thereby and it shall be filled in the manner prescribed by law, ***. (Emphasis added).

When a public office is filled by election by popular vote or by election in some other manner provided by law for a specified term, the right to the office ceases with the expiration of the term except when provided by law the incumbent holds over until his or her successor is elected and qualified. MS AG Op., LeSure (April 13, 2009); MS AG Op., Dees (August 1, 1989) citing Ott v. Lowery, 78 Miss. 487 (1901).

Section 25-1-7 requires that in order for a particular officer to be entitled to remain in office after the expiration of his or her term, there must be statutory authority specific to the office in question authorizing same. MS AG Op., Litchliter (April 14, 2006); MS AG Op., Burnett (June 12, 2000); MS AG Op., Hardwick (June 15, 2000).

***

We find no language in Section 37-7-203 or any other statute that authorizes a trustee of a municipal separate school district to "hold over" or continue in office after the expiration of his or her term.

A trustee of a municipal separate school district may not "hold over" or continue in office after the expiration of his or her term. The position becomes vacant upon the expiration of the statutory term of office and remains vacant until a qualified person is nominated and approved by the municipal governing authorities.

You state that the Leland School District has a federal program director position which is vacant and that the superintendent decided to split the duties between herself and several other school employees such as principals and supervisors all of whom will receive a portion of the salary with some of the money to be used to give certain other school employees a raise.

In discussing this matter with a representative of the State Department of Education, it is our understanding that the position of federal program director is funded with federal monies. While we do not issue opinions interpreting federal law, we note that if the funds in question were obtained through the No Child Left Behind Law (PL 107-110) , Section 1120A (1) of that law governs how the monies may be expended. It provides in part:

(b) FEDERAL FUNDS TO SUPPLEMENT, NOT SUPPLANT, NON-FEDERAL FUNDS

(1) IN GENERAL - A state educational agency or local educational agency, shall use Federal funds received under this part only to supplement the funds that would, in the absence of such Federal funds, be made available from non-Federal sources for the education of pupils participating in programs assisted under this part, and not to supplant such funds.

We suggest you consult with the federal grant authorities concerning the legality of the proposed salary expenditures under the terms of the grant.

Insofar as state law is concerned, we refer you to the Mississippi State Ethics Commission for an opinion on possible violations of our conflict of interests laws.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General