Mississippi Advisory Opinions August 05, 2016: AGO 2016-00342 (August 05, 2016)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Andrew Alexander, III

SUBJ: Municipal Charters

SBCD:139

TEXT: Andrew N. Alexander III, Esquire

Attorney for City of Greenville

Post Office Box 918

Greenville, Mississippi 38702-0918

Re: Amending special charter to change biennial election dates

Dear Mr. Alexander:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Background

Your letter states, in part:

The City of Greenville is a "special charter" municipality. With regard to City elections, the City's special charter provides the following:

Sec. 5-4 - Elections shall be biennially for four-year terms; residence of candidates

Election for mayor and three (3) councilmen shall be held on the second Monday in December, 1939, and biennially thereafter, until the election in December, 1947, and at the election in December, 1947, and thereafter every four (4) years the mayor shall be elected for a four (4) year term as provided herein. At the election on the second Monday in December, 1939, two (2) of said councilmen shall be elected from Wards One and Two, and one (1) of said councilmen shall be elected from the city at large. At the election on the second Monday in December, 1941, two (2) of said councilmen shall be elected from Wards Three and Four, and one of said councilmen shall be elected from the city at large. Councilmen elected from each of said wards shall be residents thereof, but the mayor and said councilmen shall be elected by the city at large.

This language was adopted by the City Council by Ordinance of May 11,1938. Since the adoption of this Ordinance, the City's wards have been modified at least twice by Consent Decrees or settlements in Federal litigation under the Voting Rights Act. The first, in the late 1980s, created two additional "super wards," which were formed by combining two of the existing four wards to create super Wards 5 and 6. The second occurred in 1996, when the City settled Voting Rights Act litigation by dissolving the super wards and creating six single-member wards. During this entire period, the City maintained the Charter's mandate that the mayor and half of the council members be elected in one election sequence, with the other three council members being elected two years later. The Mayor and council members for Wards 1, 2, and 6 were elected on December 14, 2015, and took office for a four-year term on January 2, 2016. Council members for Wards 3, 4 and 5 will, under the present system, be elected in December 2017 and take office in January 2018.

***

A question has arisen concerning the fairness of this arrangement and whether the special charter can be amended so that all of the City's elected positions are filled in the same election. The problem, of course, is that in order to initially synchronize the council terms and allow the recently-elected mayor and council members to serve their four-year terms, the terms of the three council members currently representing Wards 3, 4 and 5 will have to be increased by two years.

Question

May the City Council amend the City's special charter to provide that the terms of Council Members currently representing Wards 3, 4 and 5 be extended for two years, until December 31, 2019, so as to allow the election of all city officials at the same election, which would occur on the second Monday of December 2019, for terms beginning in January of 2020?

Response

No. We find no authority that would enable the governing authorities to amend the City's special charter to extend some of its members' terms for two years.

However, the synchronization of the election of council members may be achieved by following the suggested guidelines set forth below.

Suggested Guidelines

We preface our suggestions by stating that it is our understanding that the term of the current mayor and council members from Wards 1, 2 and 6 expires in January 2020.

It is our further understanding that the term of the current council members from Wards 3, 4 and 5 expires in January 2018.

With the above in mind, we suggest the following actions by the municipal governing authorities.

We suggest that the governing authorities, pursuant to Mississippi Code Annotated Section 21-17-9 (Revised 2015), propose an amendment to the charter that would provide that the election of mayor and all council members will be held on the second Monday in December 2019 and every 4 years thereafter for a four-year term beginning on the first Monday in January 2020 and until their successors are elected and qualified.

Subsequent to the effectuation of such amendment, vacancies in Wards 3, 4 and 5 would exist at the end of the current term of said council members (January 2018).

The vacancies would then be filled pursuant to Section 2-6 of the Charter, which provides for special elections within thirty (30) days of the vacancies when the unexpired term exceeds six (6) months.

Council members elected in such special election would serve until the first Monday of January 2020. All council members and the mayor would be elected on the Second Monday of December 2019 for a four (4) year term beginning on the first Monday of January 2020 and until their successors are elected and qualified.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General