Mississippi Advisory Opinions April 23, 2004: AGO 2004-0166 (April 23, 2004)

Advisory Opinion Text

The Honorable Larry M. Seal

Trustee - District Five

Hancock County Board of Education

Number 3 Quail Creek

Diamondhead, Mississippi 39525

Re: Method of Selecting County Superintendent of Education

Dear Mr. Seal:

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

With respect to Opinion No. 95-0748 issued by your office November 9, 1995 to the Honorable Myrna L. Bourgeois, I seek clarification and additional information regarding the same.

That opinion advised the statute in question had not been approved pursuant to provisions of Section 5 of the Voting Rights Act of 1965 and that the Superintendent of Education of Hancock County remains an elective office.

My questions are as follows:

1) Upon preclearance by the United States Attorney General of Section 37-5-67(b) Mississippi Code of 1972 under Section 5, at what point would the office of Superintendent of Education of Hancock become an appointed office?

2) Would an election pursuant to Section 37-5-63 Mississippi Code of 1972 be necessary to effect the above referenced statute once preclearance is received?

Additionally, having personally reviewed the bill as signed by the Governor, the publications currently in print appear to contain an omission. The original bill appears to contain wording to the effect that subsection (2) was to become effective January 1, 1972. I understand that Allen v. State Board of Elections, 393 U.S. 544 (1969) circumvented the statute.

In response to your first question, should provisions, such as those contained in Section 37-5-67, pending before the U.S. Department of Justice that mandate changing from elected to appointed superintendents of education in certain counties ever be approved by said department, such offices would, in our opinion become appointive upon the expiration of the then current terms of the affected elected superintendents.

In response to your second question should a provision as discussed above be approved under Section 5 of the Voting Rights Act, no election would be required to effectuate a change from elected to appointed superintendents in the affected counties. Also, as we pointed out in the November 9, 1995 opinion to Ms. Bourgeois, the provisions now codified as Section 37-5-63 that provide for special elections to determine whether to change from elected county superintendents of education to appointed superintendents were contained in Chapter 406, Laws of 1966, Chapters 384 and 398, Laws of 1968 and Chapter 372, Laws of 1970, none of which have been approved by the U.S. Department of Justice.

As to your observation that there is an omission in “publications currently in print”, we would simply state that any reference to the effective date of any of the bills cited above is now moot and that the specific language of any bill addressing this matter that may receive U.S. Justice Department approval in the future would constitute the substantive and controlling law.

Sincerely,

Jim Hood Attorney General

Phil Carter Special Assistant Attorney General