Mississippi Advisory Opinions September 27, 1983: 19830927 (September 27, 1983)

Advisory Opinion Text

Honorable Thomas H. Walman

City Attorney for McComb City

Post Office Box 762

McComb, Mississippi 39648

Re: Municipal Officers

Dear Mr. Walman:

Attorney General Bill Allain has received your letter and has assigned it to me for research and reply.

Your letter states:

“This firm represents the City of McComb City, and I have been instructed to request a formal opinion from your office. McComb operates under a Special Charter that originally designated the Chief of Police as an elected official. Several years ago the Charter of the City was amended to make that position appointive. The City will soon receive a petition from the electorate requesting that an election be held to determine whether or not the Charter is to be amended again, making the office elective. The City has two questions in that regard....”

Thereafter you pose two questions which are set out below with responses.

Question: “1. How soon after the receipt of the petition from the electorate must the City call an election?”

Response: The response to this question will be based upon an assumption that McComb's charter does not have provisions stating when such an election shall be held.

Chapter 17 of Title 21 of the Mississippi Code of 1972, Annotated, (the “Code”), includes statutory provisions for the amendment of municipal special or private charters. Section 21-17-11 in this chapter provides for amendment at the behest of the electorate:

“§ 21-17-11. Amendment of municipal charter — at behest of electorate.

It shall be lawful for any number, not less than twenty per centum of the qualified electors of any municipality, by petition, to propose an amendment or amendments to the charter of such municipality not in conflict with the constitution and laws of the United States, or the constitution of this state. The said amendment or amendments shall be published for three weeks prior to a special election in a newspaper published in the municipality, if there be one, and if not, by posting for said time in at least three public places therein. If such election results in favor of any such amendment or amendments, then the amendment or amendments shall be submitted to the governor, as is provided in section 21-17-9, and the procedure therein outlined shall be followed, except that it shall not be necessary to republish such amendment or amendments, or resubmit such amendment or amendments for approval of the qualified electors.”

No provision is made in Section 21-17-11 or elsewhere in statutes specially dealing with amending charters for a time within which action is to be taken after receipt of the petition produced under Section 21-17-11. The few Mississippi decisions on the general subject do not answer the question.

Reference is then made to Section 21-11-11 of the Code:

Ҥ 21-11-11. Time for holding special elections.

Whenever under any statute a special election is required or authorized to be held in any municipality, and the statute authorizing or requiring such election does not specify the time within which such election shall be called , or the notice which shall be given thereof, the governing authorities of the municipality shall, by resolution, fix a date upon which such election shall be held. Such date shall not be less than twenty-one nor more than thirty days after the date upon which such resolution is adopted, and not less than three weeks' notice of such election shall be given by the clerk by a notice published in a newspaper published in the municipality once each week for three weeks next preceding the date of such election, and by posting a copy of such notice at three public places in such municipality....” (Emphasis Supplied)

Also, reference is made to Coleman v. Board of Supervisors of Choctaw County , 216 Miss. 867, 63 So.2d 533 (1953) (reported as Coleman v. Thompson et al. in Southern Reporter), wherein the court held in part that a board of supervisors had the duty to canvass names on a petition to determine whether it contained the required number with requisite qualifications; that practical consideration may delay the canvass; that no action therein should be taken until the determination be made; and that the number of signers and their qualifications are determined as of the date of the Board's adjudication and not the date of filing of the petition.

In Coleman , the petition was filed on April 7th, and, after some signers had exercised the right to withdraw their names, the Board did not act upon the petition at a following April meeting but determination was continued until the following May meeting. This was found by the court to be reasonable and lawful.

Considering the foregoing, it is the opinion of this office that upon receipt of a petition presented under Section 21-17-11, the McComb municipal governing authorities:

(1) Should promptly begin a canvass to determine the number of qualified signers of the petition and may take as much time to do so as shall be reasonably necessary; and,

(2) Thereafter act within a reasonable period of time to act by resolution to set the date for a municipal special election as such an election is required by the provisions of Section 21-17-11; and,

(3) As provided in Section 21-11-11, such election is to be held not less than twenty-one nor more than thirty days after the date upon which such resolution is adopted; and,

(4) Notice of such election should be given as prescribed in Section 21-17-11.

Question: “2. Assuming that an election is held and the Charter is amended, making the office of the Chief of Police elective, when must the City hold an election to fill that position?”

Response: Reference is made to Glover v. City of Columbus , 197 Miss. 467, 19 So.2d 756, 165 A.L.R. 1350 (1944), wherein the court stated at page 757 concerning the definition of a public officer:

“...[1-3] A public officer, broadly speaking, is a person appointed or elected to perform a designated duty concerning the public. The duty which a municipal policeman is called on to discharge, of course, concerns the public; consequently, broadly speaking, he may be referred to as a public officer. But the fact that his duties concern the public does not, without more, bring him within the provisions of Section 20 and 175 of the Constitution. In order to come within the meaning of these two sections of the Constitution, the officer's duty must be continuing, be 'defined by rules prescribed by law' ( Shelby v. Alcorn , 36 Miss. 273, 72 Am.Dec. 169) to be discharged by him in his own right, and not by permission and under the supervision and control of another. State ex rel. Brown v. Christmas , 126 Miss. 358, 11 So. 881; McClure v. Whitney , 120 Miss. 350, 82 So. 259.... ”

See also Golding v. Armstrong , 231 Miss. 889, 97 So.2d 379 (1957).

In Glover , the court was speaking of a municipal public officer. It is understood from your letter that the position of “office of chief of police” of McComb is an office as that held by a public officer as defined in Glover , and that the McComb charter does not have provisions which negate that understanding. Alternatively or additionally, of course, the provisions of the McComb charter may provide with certainty that the office of McComb Chief of Police is that of a public officer.

It follows from Glover that a public office is for a fixed term, terminable only by resignation, death, or operation of law; and, in a municipality, such term is coextensive with that of the municipal governing authorities unless otherwise fixed by statute or the provisions of a special or private charter.

If the McComb Chief of Police is a public officer and his term is not fixed for a period less than that of the municipal governing authorities, then a change in the special charter to make the office election would not become effective during the now fixed term of the chief of police.

A change in the McComb charter to change the public office of chief of police from appointive to elective must be submitted for consideration under Section 5 of the Voting Rights Act of 1965 (42 U.S.C. 1973c). See Perkins v. Matthews , 400 U.S. 379, 27 L.Ed.2d 476, 91 S.Ct. 431 (1971), and will not become effective until federal approval.

With kind regards, I am

Very truly yours,

Bill Allain Attorney General.