Mississippi Advisory Opinions March 24, 2017: AGO 2017-00081 (March 24, 2017)

Advisory Opinion Text

AUTH: Beebe Garrard

RQNM: Arnold Clark, Jr.

SUBJ: Elections - Primary

SBCD: 70

TEXT: Alderman Arnold Clark, Jr.

City of Fayette

P.O. Box 637

Fayette, MS 39069

Re: Temporary Executive Committee

Dear Mr. Clark:

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

Facts and Issue Presented

According to your request, the City of Fayette is unclear whether the necessary steps have been taken to hold a Democratic primary. You state that the chair of the county Democratic executive committee did not follow the proper procedure outlined in Miss. Code Ann. Section 23-15-313(1) for establishing a temporary executive committee. Specifically, you state that the required meeting was not called by petition, nor was it properly advertised, and the chairman made certain decisions independently without a vote by the executive committee. You further state that the chair of the county Democratic executive committee was never eligible to serve on the executive committee due to a prior felony conviction, and he resigned from his position in February 2017.

You later provided our office with copies of three letters sent to the city clerk by the county Democratic executive committee chairman. In the December 26, 2016 letter, the county Democratic executive committee chairman informed the city clerk that the county executive committee planned to form a temporary municipal executive committee. In the January 6, 2017 letter, the county Democratic executive committee chairman provided a list of the people chosen to serve on the temporary municipal executive committee. In the January 25, 2017 letter, the county Democratic executive committee chairman informed the city clerk that either the temporary municipal executive committee or the county executive committee would conduct the 2017 municipal Democratic primary. Based on the receipt stamps, it appears that all three letters were received by the City of Fayette on January 27, 2017. In your opinion request, you ask whether, given these facts, the city is within its right not to hold the primary if it so chooses.

Applicable Law and Response

We preface our response by stating that it is our understanding that several candidates qualified to run in the Democratic primary by filing their statements of intent and paying the required filing fee. Pursuant to Miss. Code Ann. Section 7-5-25, opinions of the Attorney General are issued on questions of law for the future guidance of those officials entitled to receive them and can neither validate nor invalidate past action. Accordingly, our office cannot make the factual determination of whether the county executive committee properly established a temporary executive committee. For prospective purposes, we offer the following opinion.

Our office has consistently opined that a political party must have a lawfully constituted municipal executive committee in place prior to the qualifying deadline in order to have a municipal primary. See MS AG Ops. Ashford (April 22, 2013) and Collins (October 2, 2015). If there is no lawfully elected municipal party executive committee in place, Section 23-15-313 provides two procedures for establishing a temporary municipal executive committee. “Pursuant to Section 23-15-313(1) the chairman of a county executive committee may, upon petition of five (5) or more ‘members of that political faith,’ call a mass meeting of the municipal qualified electors of their political faith who may then select a temporary municipal executive committee. Alternatively, pursuant to Section 23-15-313(2) the county party executive committee may serve as the temporary municipal executive committee.” MS AG Op., Ashford (April 22, 2013).

Failure to properly establish a temporary municipal executive committee pursuant to Section 23-15-313(1) does not prohibit a county executive committee from acting as the temporary executive committee as long as the statutory requirements of Section 23-15-313(2) are met prior to the qualifying deadline. If, as indicated in your letter, the statutory procedure set forth in Section 23-15-313(1) to establish a temporary executive committee was not followed, the county party executive committee, by virtue of its notification to the city that it would conduct the municipal Democratic primary, would be authorized to conduct said primary. If, as you stated, the former chairman of the county party executive committee has a felony conviction, his actions as a de facto chairman would be valid. See Section 25-1-37 and MS AG Op., Jackson (May 12, 1993). Additionally, a court of competent jurisdiction would determine if a municipal executive committee was not lawfully constituted, not the board of aldermen. Therefore, in direct response to your inquiry and assuming all the facts you provided to be true, the City of Fayette could not refuse to hold a Democratic primary.

If we may be of further assistance, feel free to contact our office.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

Beebe Garrard, Special Assistant Attorney General