Mississippi Advisory Opinions August 30, 1994: AGO 94-0604 (August 30, 1994)

Advisory Opinion Text

Honorable Myrna Bourgeois

Superintendent of Education

Hancock County School District

451-A Highway 90

Waveland, Mississippi 39567

Re: School Board Elections

Dear Ms. Bourgeois:

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

“I am requesting an Attorney General's Legal Opinion on the following questions as related to the documents forwarded to you on August 17, 1994:

To my knowledge all school board members prior to 1991 were elected by the district boundaries of Hancock County Board of Supervisors. In 1991, when changes were made to re-align the school's districts and approved by the Hancock County Board of Trustees on the 8th day of July, 1991, should not an election of school board trustees have occurred in the general election in 1991?

Since it is the duty of the Secretary of State to notify Clerks as to when elections occur, should the superintendent and school board members have advised the Secretary of State's Office of the changes in the district's boundaries?

In 1992, Districts 1 and 2 were elected in the appropriate school district boundaries as approved by the school board of trustees and the Justice Department. The only thing that is questioned is the length of term. They were elected for 6 years, and by state statute they should be elected for 4 years. Can these members still serve as legally elected district members? Can the length of term be changed from 6 to 4 years?

Taking into consideration that all members of the Board of Trustees and the former superintendent were well aware of the election that did not occur in 1991, as they all had been in office for many years, and therefore were in violation of the statute. What is the legal penalty for this violation?

What do we do until the election in November, and the taking of the oath of office in January? Do these illegal members remain in office?

Are these members allowed legally to participate in other elections?”

We preface this opinion by stating that our purpose is to advise the public officials of Hancock County on addressing the problems raised in your letter and not to place blame or make determinations of violations of law in regard to the past action (or inaction) of former or current public officials.

It is our understanding that, pursuant to the request of the Hancock County School Board, the Hancock County Board of Supervisors on August 5, 1991, adopted an order creating five (5) single member board of education districts all in accordance with Mississippi Code Annotated Section 37-5-1(2) (Revised 1990). You provided us with a copy of a letter from the Civil Rights Division of the U.S. Department of Justice addressed to Joseph W. Gex, Esquire, dated October 9, 1991 wherein the Justice interposed no objection to the new districts. We understand that Mr. Gex, at the time, represented the Hancock County School Board.

We further understand, as stated in your letter, that prior to the creation and approval of the new election districts, members of the school board were elected from supervisors districts.

Section 37-5-1 (2) provides in part:

“The board of supervisors of any county upon the request of the county school board shall provide by order entered on its minutes, that each member of the county board of education for such county shall be elected from and shall be a resident and qualified elector in a special district determined in the following manner: The board of supervisors of such a county shall apportion the county school district into five (5) single member board of education districts. The board of supervisors shall place upon its minutes the boundaries determined for the new five (5) board of education districts. . . . .”

Section 37-5-7 (2) provides:

“On the first Tuesday after the first Monday in November, in any year in which any county shall elect to utilize the authority contained in Section 37-5-1(2), an election shall be held in each such county in this state for the purpose of electing the county boards of education in such counties. At said election the members of the said county board of education from Districts One and Two shall be elected for a term of four (4) years, the members from Districts Three and Four shall be elected for a term of six (6) years, and the member from District Five shall be elected for a term of two (2) years.

Thereafter, members shall be elected at general elections as vacancies occur for terms of six (6) years each. All members of the county board of education shall take office on the first Monday of January following the date of their election.”

Even though it is clear that Hancock County created the special single member election districts for the school board and they became effective on October 9, 1991, no election was held as required by the above quoted statute [37-5-7(2)]. The result, in our opinion, is that each member now serving on the school board is serving in a de facto capacity, including the members from districts one and two who were “elected” in 1992. While all acts taken by the de facto board members are valid pursuant to Section 25-1-37, action must be taken to bring the county into compliance with the law.

It is the opinion of this office that the November 8, 1994 school board elections should be for the election of all five members of the county school board utilizing the special board of education districts as adopted by the Board of Supervisors and approved by the U.S. Department of Justice in accordance with Sections 37-5-7(2) and 37-5-9.

We know of no prohibition against current de facto members qualifying as candidates in such election.

Sincerely,

Mike Moore Attorney General

Larry E. Clark Deputy Attorney General.