Mississippi Advisory Opinions April 28, 1993: AGO 93-0289 (April 28, 1993)

Advisory Opinion Text

Luke J. Schissel, Esquire

Attorney for City of Greenwood

Post Office Drawer 659

Greenwood, Mississippi 38930–0659

RE: APPOINTMENTS

Dear Mr. Schissel:

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

“In the City of Greenwood the President of the City Council died last week and the Mayor has been hospitalized for heart surgery but is expected to return to his Mayoral duties within sixty (60) days.

Regular City elections for all these offices will take place less than two month from now on June 8 of this year.

Before undergoing surgery the Mayor appointed a member of the City Council to assume the duties of Mayor. His appointment has been challenged by the Vice–President of the City Council, who has assumed the duties of President of the City Council and asserts he is also entitled to assume the duties of acting Mayor.

Our reading of Section 21–8–19 of the Code is that the Mayor may choose whomever he wishes from the City Council to act as Mayor providing the latter will not be absent from his office for longer than sixty (60) days.

Further, we understand Section 23–15–857(1) to mean, under our Mayor–Council form of government, that the Mayor shall appoint, and the City Council shall confirm the appointment of, a replacement for the vacant City Council seat.

Could you please give us your written opinion as to whether these are correct interpretations of the hereinabove described statutes?

Mississippi Code Annotate § 21–8–19 (Revised 1990) provides in part:

“Whenever the mayor shall be prevented by absence from the municipality, disability or other cause from attending to the duties of his office, the mayor shall appoint a member of the council to assume the duties of the mayor. However, any acting mayor so appointed shall retain his right to vote in the council. Whenever the mayor shall have been unable to attend to the duties of his office for a period of sixty (60) consecutive days for any of the above stated reasons, or whenever the mayor shall be incapable of making such appointment, an acting mayor shall be appointed by the council from among its members and said acting mayor shall succeed to all the rights, powers and duties of the mayor or the then acting mayor. Such acting mayor shall serve until the mayor returns to office or until a new mayor has been elected to fill the unexpired term of the original mayor....”

We are in agreement with your interpretation of the above quoted statutory provisions that, under the given factual circumstances, the Mayor may choose any member of the City Council to serve as Acting Mayor.

In response to your request concerning the filling of the vacancy on the City Council, Section 21–8–7(5) provides that “(v)acancies occurring in the council shall be filled as provided in Section 23–15–857, Mississippi Code of 1972 ”.

Section 23–15–857(1) provides in part:

“When it shall happen that there is any vacancy in a city, town or village office which is elective the unexpired term of which shall not exceed six (6) months, the same shall be filled by appointment by the governing authority or remainder of the governing authority of said city, town or village....”

Section 23–15–857 is a statute of general application setting forth the procedure that is to be followed in filling vacancies in municipal office. Since there is no specific provision for the mayor to make such appointment subject to confirmation by the council, it is the opinion of this office that such appointments would, as in other forms of municipal government, be made by the council subject to the mayor's veto.

Sincerely,

MIKE MOORE ATTORNEY GENERAL

Phil Carter Assistant Attorney General.