Mississippi Advisory Opinions December 18, 2015: AGO 2015-00458

Advisory Opinion Text

John T. Lamar, Jr., Esquire

Attorney for Tate County School District

214 South Ward Street

Senatobia, Mississippi 38668

Re: Clarification of Election and Terms of Office of School Board Members

Dear Mr. Lamar:

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 Tate County School District was placed under conservatorship in 2007-2008. Sometime after that, the Tate County School District Board was abolished and the District operated under Mr. James Malone, Conservator. By proclamation of the Governor, in the fall of 2013 the District came out from under conservatorship and elections were held with the current Board members to take office effective January 1, 2014. In reviewing the applicable statute for the terms of election of School Board members it appears that Section 37-5-7(2) of the Mississippi Code of 1972 Annotated as Amended applies. This would be the term for the five members of the School Board. However, there seems to be some confusion about the terms of these School Board members. I am attaching for your consideration the Statute Section 37-5-7(2) along with the calendar the Circuit Court received and also the initial email that Alan Callicott, local insurance agent, who wrote the bond for these Board members.

Ms. Malenda White, School Board member from District 5 per the instructions from the Secretary of State's office ran again in 2014 for a six year term which, in my opinion, is contrary to Section 37-5-7(2).

Issue Presented

You request clarification as to whether you are correctly interpreting the terms of office of the members of the Tate County School Board.

Response

We first state that the 2014 election of the district five school board members is past action. Pursuant to Mississippi Code 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. An Attorney General's opinion can neither validate nor invalidate past action of a public entity. Therefore, we must decline to opine on the validity of said election.

For all future school board elections, we are in agreement with your conclusion that Section 37-5-7 (2) governs the terms of office of members of the Tate County Board of Education.

Applicable Law and Discussion

Section 37-5-1 provides, in part:

(1) There is hereby established a county board of education in each county of the State of Mississippi. Said county board of education shall consist of five (5) members, one (1) of which, subject to the further provisions of this chapter and except as is otherwise provided in Section 37-5-1(2), shall be elected by the qualified electors of each board of education district of the county. Except as is otherwise provided in Section 37-5-3, each member so elected shall be a resident and qualified elector of the district from which he is elected.

(2) The county board of education shall apportion the county school district into five (5) single member board of education districts. The county board of education shall place upon its minutes the boundaries determined for the new five (5) board of education districts. The board of education of said county shall thereafter publish the same in some newspaper of general circulation within said county for at least three (3) consecutive weeks and after having given notice of publication and recording the same upon the minutes of the board of education of said county, said new district lines will thereafter be effective. The board of education of said county shall reapportion the board of education districts in accordance with the procedure described herein for the original apportionment of districts as soon as practicable after the results of the 2000 decennial census are published and as soon as practicable after every decennial census thereafter. (Emphasis added)

***

Section 37-5-7 provides:

(1) On the first Tuesday after the first Monday in May, 1954, an election shall be held in each county in this state in the same manner as general state and county elections are held and conducted, which election shall be held for the purpose of electing the county boards of education established under the provisions of this chapter. At such election, the members of the said board from Supervisors Districts One and Two shall be elected for the term expiring on the first Monday of January, 1957; members of the board from Supervisors Districts Three and Four shall be elected for a term expiring on the first Monday of January, 1959; and the member of the board from Supervisors District Five shall be elected for a term expiring on the first Monday of January, 1955. Except as otherwise provided in subsection (2), all subsequent members of the board shall be elected for a term of six (6) years at the regular general election held on the first Monday in November next preceding the expiration of the term of office of the respective member or members of such board. All members of the county board of education as herein constituted, shall take office on the first Monday of January following the date of their election.

(2) On the first Tuesday after the first Monday in November, in any year in which any county shall elect to utilize the authority contained in Section 37-5-1(2), an election shall be held in each such county in this state for the purpose of electing the county boards of education in such counties. At said election the members of the said county board of education from Districts One and Two shall be elected for a term of four

(4) years, the members from Districts Three and Four shall be elected for a term of six (6) years, and the member from District Five shall be elected for a term of two (2) years. Thereafter, members shall be elected at general elections as vacancies occur for terms of six (6) years each. All members of the county board of education shall take office on the first Monday of January following the date of their election.

(Emphasis added)

Section 37-5-7(1) sets the terms of office for members of county boards of education who were elected from supervisors districts.

Section 37-5-7(2) sets the terms of office for members of county boards of education who were elected from single member board of education election districts apportioned pursuant to Section 37-5-1 (2).

Prior to July 22, 2002, the effective date of the 2002 Amendment to Section 37-5-1, members of county boards of education were elected from supervisors districts unless a county board of education was apportioned into single member board of education districts by the board of supervisors at the request of the county school board. The 2002 Amendment to Section 37-5-1(1) requires that county school board members “shall be elected by the qualified electors of each board of education district.”

It is our understanding that in 2013, the Tate County School District was reapportioned pursuant to Section 37-5-1(2) into five (5) new single member board of education election districts. It, therefore, becomes apparent that the terms of office of the Tate County School Board members are set by Section 37-5-7(2).

School board members from districts one (1) and two (2) were elected to four (4) year terms beginning on the first Monday of January 2014 in the 2013 election conducted pursuant to Section 37-17-13(4) which contains the statutory provisions applicable to school districts coming out of conservatorship. The terms of those offices will expire on the first Monday of January 2018. Therefore, the next election for districts one (1) and two (2) will be held in November 2017.

Likewise, school board members from districts three (3) and four (4) were elected to six (6) year terms beginning on the first Monday of January 2014 in the 2013 election conducted pursuant to the statutory provisions applicable to school districts coming out of conservatorship. The terms of those offices will expire on the first Monday of January 2020. Therefore, the next election for districts three (3) and four (4) will be held in November 2019.

In regard to the district five (5) office, in order to conform to the terms of office set by Section 37-5-7 (2) for future elections, it is the opinion of this office that the next election for that office should be held in November 2021.

Sincerely,

Jim Hood, Attorney General

Phil Carter, Special Assistant Attorney General.