Mississippi Advisory Opinions October 04, 2013: AGO 2013-00392 (October 04, 2013)

Advisory Opinion Text

AUTH: Liz Bolin

RQNM: Conrad Mord

SUBJ: Elections

SBCD:71

TEXT: Mr. Conrad Mord

Attorney at Law

729 Beulah Ave.

Tylertown, MS 39667

Re: Qualifications for Appointee to fill Vacancy in Office for Superintendent of Education

Dear Mr. Mord:

Attorney General Hood is in receipt of your request for an official opinion and it has been assigned to me for research and reply.

Background and Questions Presented

Your letter states:

As attorney for the Board of Education of Walthall County, I would appreciate your opinion on the following:

Walthall County has an elected Superintendent of Education. Our present Superintendent has given his notice that he is resigning, effective September 30, 2013. Pursuant to Section 37-5-75, Mississippi Code of 1972, such vacancy shall be filled by appointment by the county board of education. Our questions are:

1. Are the qualifications for the appointed Superintendent the same as they are for the elected Superintendent, i.e. education, certification, experience? I am aware of your opinion to the Honorable Tony Gaylor, Interim Board Attorney for Hinds County, Number 2012-00583, wherein you opined that an appointed supervisor must meet all of the qualifications of an elected supervisor.

2. Is residency within the county mandatory? Section 37-9-13, MCA does not specifically address this issue.

3. If the qualifications are the same for both the elected

Superintendent and the appointed one, and residency is a requirement, what markers would prove satisfaction of the residency requirement and who would make that determination?

a. Your opinion to Honorable R.V. Adams concerning municipal elections, 2012-00183, provides that "if one has filed for homestead exemption it creates a strong but rebuttable presumption that the property on which the homestead exemption is claimed is one's residence for election purposes" citing Hinds County Election Commission v. Brinston , 671 So.2d 667 (Miss. 1996).

b. What if a prospective elector has filed homestead in one county but votes in another county? The Brinston case, supra, cites Gadd v. Thompson, 517 So.2d 576 (Miss. 1987), which seems to provide that the filing for homestead exemption would control over voter registration.

Response

A county superintendent of education is required to be a resident and qualified elector of the county from which he or she is elected. An interim superintendent appointed pursuant to Section 37-5-75 is required to meet the same qualifications as an elected superintendent.

Applicable Law and Analysis

Vacancies in the office of county superintendent of education are filled pursuant to Miss. Code Ann. Section 37-5-75 which states:

If a vacancy shall occur in the office of county superintendent of education, such vacancy shall be filled by appointment by the county board of education. If the unexpired term shall exceed six (6) months, it shall be the duty of the board of supervisors of the county to call a special election to fill such vacancy for such unexpired term, which said election shall be called and held in the manner provided by Section 23-15-839. In such case the person so appointed by the county board of education shall hold office only until such election is held and the person elected thereat shall qualify and enter upon the discharge of his duties.

When a special election is required, the county board of supervisors, pursuant to Section 23-15-839, directs the county election commission to hold an election to fill the position on the next regular special election day occurring more than ninety (90) days after the vacancy occurs. In a special election candidates qualify by submitting a petition containing the signatures of not less than 50 qualified electors of the county. See Miss. Code Ann. Section 23-15-359. In accordance with 23-15-359(8), the "election commission shall determine whether each candidate is a qualified elector of the state, state district, county or county district they seek to serve , and whether each candidate meets all other qualifications to hold the office . . .." See Miss. Code Ann. Section 23-15-359(8); Section 250, Mississippi Constitution of 1890. Thus, a county superintendent of education is required to be a resident and qualified elector of the county from which he or she is elected.

In addition to being a resident of the county, a county superintendent of education is required to hold a valid administrator's license issued by the State Department of Education and must have not less than four (4) years of classroom or administrative experience. See Miss. Code Ann. Section 37-9-13.

Section 44 of the Mississippi Constitution provides that a person convicted of a felony in Mississippi is not eligible to hold an office of profit or trust. Additionally, a person convicted after December 8, 1992 of an offense in another state which is also a felony in Mississippi, or of any felony in a federal court, is not eligible to hold an office of profit or trust. (Please note Subsection 3 of Section 44 lists several offenses which are not considered disqualifying.)

The question of whether one meets the residency requirements to be a candidate for public office is one of fact which can only be answered by the appropriate election officials subject to judicial review. In making those factual determinations there are certain guidelines recognized by the courts that should be considered. For your reference, I am enclosing an opinion to the Honorable George Flaggs, Jr. (September 28, 2012) which discusses these guidelines and provides citations to relevant court rulings.

Conclusion

A county superintendent of education is required to be a resident and qualified elector of the county from which he or she is elected. Additionally, a person who holds this office must meet the qualifications set forth in Section 37-9-13. No person is eligible to hold this office if a prior conviction renders him ineligible under Section 44 of the Mississippi Constitution of 1890. An interim superintendent appointed pursuant to Section 37-5-75 is required to meet the same qualifications as an elected superintendent.

Please let us know if this office can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Elizabeth S. Bolin, Special Assistant Attorney General