Mississippi Advisory Opinions April 29, 2016: AGO 2016-00147 (April 29, 2016)

Advisory Opinion Text

AUTH: Liz Bolin

RQNM: John Keith Perry

SUBJ: Counties

SBCD: 49

TEXT: John Keith Perry, Esq.

Board Attorney

Tunica County Board of Supervisors

5699 Getwell Rd., Bldg. G5

Southaven, MS 38672

Re: Removal of planning commission member

Dear Mr. Perry:

Attorney General Hood is in receipt of your request for an official opinion, and it has been assigned to me for research and reply.

Question Presented

May a member of the Tunica County Planning and Zoning Commission, appointed in the manner described below, be removed by the Tunica County Board of Supervisors?

Background

Your letter states, in part:

A. A prospective candidate for Tunica County Board of Supervisors, Craig Jones, sued the Tunica County Democratic Executive Committee (TCDEC) arguing it unlawfully denied him the opportunity to run as a qualified candidate in the Democratic Primary for District Supervisor.

B. After a hearing on Jones’ qualification challenge, Circuit Judge Henry Lackey (specially appointed) found that Mr. Jones qualified as a candidate and ordered he be placed on the Democratic Primary Ballot for Tunica County District 5 Supervisor. Aggrieved by the order, TCDEC appealed to the Mississippi Supreme Court.

C. The Mississippi Supreme Court dismissed said appeal for TCDEC’s failure to prosecute and instructed all parties to comply with the lower court’s order. Following the dismissal of the TCDEC’s appeal, Judge Lackey entered a second Order on November 2, 2015 stating the District 5 primary election should be vacated because Craig Jones was not found on the ballot and a special election held as set by the Governor of the State of Mississippi.

D. The following day, November 3, 2015, Tunica County held its general election despite the order vacating the Primary election. The Democratic primary winner Reverend McKinley Daley, who at the time was the current elected Supervisor for said District, and Independent William Pegram were on the ballot for District 5. Pegram won the election with 334 to 323 votes.

E. On February 2, 2016, Judge Lackey held a hearing on the matter.

F. On February 10, 2016, Judge Lackey entered an Order setting aside his original Order and ordered Mr. Pegram be the duly elected member of the Tunica County Board of Supervisors.

G. During Mr. Daley’s tenure as holdover incumbent for District 5, he appointed a member to the Tunica County Planning Commission.

H. Mr. Pegram wishes to remove said committee member and appoint one of his choosing.

Applicable Law and Analysis

Your letter does not state the specific authority for the establishment of the Tunica County Planning Commission; however, we assume it is authorized pursuant to Miss. Code Ann. Section 17-1-11, which states, in part:

(1)(a) The governing authority of each municipality and county may provide for the preparation, adoption, amendment, extension and carrying out of a comprehensive plan for the purpose of bringing about coordinated physical development in accordance with present and future needs and may create, independently or jointly, a local planning commission with authority to prepare and propose (a) a comprehensive plan of physical development of the municipality or county; (b) a proposed zoning ordinance and map; (c) regulations governing subdivisions of land; (d) building or set back lines on streets, roads and highways; and (e) recommendations to the governing authorities of each municipality or county with regard to the enforcement of and amendments to the comprehensive plan, zoning ordinance, subdivision regulations and capital improvements program.

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(2) The governing authority of each municipality and county may adopt, amend and enforce the comprehensive plan, zoning ordinance, subdivision regulations and capital improvements program as recommended by the local planning commission after a public hearing thereon as provided by Section 17-1-15.

(3) In the performance of its duties, the local planning commission may cooperate with, contract with, or accept funds from federal, state or local agencies or private individuals or corporations and may expend such funds and carry out such cooperative undertakings and contracts. (Emphasis added.)

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The statute neither provides for the term of members nor addresses the removal of commission members. Additionally, Section 17-1-11 does not set forth any particular requirements for the makeup of such commission.

This office has previously opined that members of the Planning and Zoning Commission created by the City of Long Beach, Mississippi do not hold an office and are not officers. MS AG Op., Hoffman (April 24, 1984). Thus, commission members are not entitled to a definite term of office under the provisions of Section 25-1-1.

Conclusion

Based upon the foregoing, we are of the opinion that a member of the Tunica County Planning and Zoning Commission may be removed by the Tunica County Board of Supervisors. Any such removal and appointment must be done in accordance with the procedures adopted by the Board of Supervisors upon the creation of the Commission.

Please let us know if this office can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Elizabeth S. Bolin, Special Assistant Attorney General

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Notes:

Municipal and county planning commissions are authorized pursuant to the same statute – Section 17-1-11.

The term of office of all officers, not otherwise provided for by law, shall be four years and until their successors shall be duly qualified. Miss. Code Ann. Section 25-1-1.

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