Mississippi Advisory Opinions September 28, 1983: 19830928 (September 28, 1983)

Advisory Opinion Text

Mr. Gary L. Carnathan

Attorney

Lee County School Board

Post Office Drawer 70

Tupelo, Mississippi 38801

Re: Schools—Vacancy on County Board of Education

Dear Mr. Carnathan:

Attorney General Bill Allain has received your letter of request dated September 15, 1983, and has assigned it to me for research and reply. Your inquiry states as follows:

Recently a member of the Lee County School Board resigned and it is necessary that a replacement member be either elected or appointed. With that in mind, please advise in an opinion form what the proper steps would be relative to the replacing of the resigned Board member. The effective date of the resignation was September 1, 1983.

Mississippi Code Ann. § 37-5-19 (1972) provides the manner in which vacancies on a county board of education are to be filled and states the following:

Vacancies in the membership of the county board of education shall be filled by appointment, within 60 days after the vacancy occurs, by the remaining members of the county board of education. Said appointee shall be selected from the qualified electors of the district in which the vacancy occurs, and shall serve until the first Monday of January next succeeding the next general election, at which general election a member shall be elected to fill the remainder of the unexpired term in the same manner and with the same qualifications applicable to the election of a member for the full term.

In the event the vacancy occurs more than five months prior to the next general election and the remaining members of the county board of education are unable to agree upon an individual to be appointed, any two of the remaining members may certify such disagreement to the county election commission. Upon the receipt of such a certificate by the county election commission, or any member thereof, the commission shall hold a special election to fill the vacancy, which said election, notice thereof and ballot shall be controlled by the laws concerning special elections to fill vacancies in county or county district offices. The person elected at such a special election shall serve for the remainder of the unexpired term.

Under this Code section one mode of filling the vacancy would be by appointment by the remaining members of the county board of education if they could agree on an appointment. The appointee would serve until the first Monday of January next succeeding the next general election at which time a board member would be elected to fill the remainder of the unexpired term.

A second mode for filling the vacancy if the remaining board members cannot agree on an appointment and the vacancy occurs more than five months prior to the next general election is the calling of a special election by certifying the disagreement to the county election commission which will in turn hold the special election. Mississippi Code Ann. § 37-5-9 provides in part the following:

The name of any qualified elector who is a candidate for the county board of education shall be placed on the ballot used in the general elections by the county election commissioners, provided that the candidate files with the county election commissioners, not more than ninety (90) days and not less than sixty (60) days prior to the date of such general election, a petition of nomination signed by not less than ...

Since the next general election is November 8, 1983, there will not be enough time for a candidate to qualify for that election under the provisions of § 37-5-9 . Therefore, at the present time there would be more than five months prior to the next general election at which a candidate could qualify amd in the event the remaining members of your county board of education cannot agree upon an individual to be appointed, a special election could be called.

If this office can be of benefit in the future, please do not hesitate to contact us.

Sincerely,

Bill Allain Attorney General