Mississippi Advisory Opinions November 15, 2013: AGO 2013-00445 (November 15, 2013)

Advisory Opinion Text

AUTH: Leigh Janous

RQNM: Johnny Dupree

SUBJ: Municipalities

SBCD: 142

TEXT: Mr. Johnny L. DuPree

Mayor, City of Hattiesburg

P.O. Box 1898

Hattiesburg, MS 39403-1898

Re: Appointment of Department Directors

Dear Mr. DuPree:

Attorney General Jim Hood received your request and assigned it to me for research and response.

Issues Presented

You inquire as to whether department directors, who are holding over from the previous term, continue to serve in that capacity until the confirmation of a successor has been achieved, even if the council does not confirm their appointment for this term. Specifically, you provide the following:

The City of Hattiesburg operates under the mayor-council form of government. Section 21-8-23(2) of the MS Code states "[e]ach department shall be headed by a director, who shall be appointed by the mayor and confirmed by an affirmative vote of a majority of the council present and voting at any such meeting. Each director shall serve during the term of office of the mayor appointing him, and until the appointment and qualification of his successor." Some of the current directors are serving in a hold-over capacity due to the recent elections in Hattiesburg.

I am in the process of selecting department directors for the next four year term. I will be submitting new candidates for some of the positions due to resignations and/or the retirement of some of the previous directors. However, I will be submitting the names of some of the current directors for reappointment to the same position.

I am aware that if the city council does not confirm the appointment of a candidate as a department director, that person may not be employed for that position. The question I have is regarding reappointment of current directors. I do understand that these individuals must be submitted for reappointment and may not serve as the department director if the reappointment is not confirmed. My question is, do the individuals that are currently serving as hold-over department directors continue to serve in that capacity if not confirmed, until I find a candidate that the city council will confirm as their successor?

Response

In the event that the city council rejects, or otherwise does not confirm, the reappointment of an individual that is serving in a holdover capacity, that particular individual may not continue to serve in such capacity and the position is considered vacant.

Applicable Law and Discussion

In our opinion to you, dated February 24, 2006, we addressed appointments of department directors and their authority to holdover in those positions. We specifically provided that

[i]n a mayor/council form of municipal government, a mayor, including one who is re-elected to a new four (4) year term of office, must submit his appointees to director positions to the city council for confirmation, even if the appointees are the same individuals who served as department directors during the prior term. This appointment should be made within a reasonable time after the beginning of the new term. Until such time as the appointments are made, authority exists for the directors serving during the prior term to serve in a hold-over capacity.

MS AG Op., DuPree (February 24, 2006); MS AG Op., Carroll (February 24, 2006).

However, in the instance where the reappointment of a department director is not confirmed by the city council, said department director may not continue to serve in a holdover capacity. MS AG Op., Jordan (March 22, 1996). See also MS AG Op., Nalley (August 1, 2008)(once city council fails to confirm appointee, Section 21-8-23 contemplates finality and appointee considered rejected and may not be reappointed). Once the city council rejects an appointee, the appointed position is considered vacant until the mayor presents a new appointee to the city council for confirmation and until the city council confirms such appointment.

If we may be of further assistance, please advise.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL.

Leigh Triche Janous, Special Assistant Attorney General.