Mississippi Advisory Opinions August 30, 2019: AGO 2019-00261

Advisory Opinion Text

Kelvin Pulley, Esquire Board

Attorney

Greenwood Leflore Consolidated School District 522

West Park Avenue, Suite L

Greenwood, Mississippi 38930

Re: School Board Vacancy Dear Mr. Pulley:

Dear Mr. Pulley:

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

Issues Presented

In your request, you provide:

Currently, the Greenwood Leflore Consolidated School District has four board members following the resignation of a board member. That board member's term was originally set to expire on January 1, 2022. However, Mississippi Code Ann. Section 37-7-104.6 shortened the expiration to January 1, 2020. The Attorney General's office has already opined on this issue in an opinion written on May 25, 2018 (AG Opinion 2018-00138) where it states that ““vacancies, both pre-consolidation and post consolidation, would be filled pursuant to Section 37-5-19.” According to Miss. Code Ann. Section 37-5-19, ““said appointee shall be selected from the qualified electors of the district in which the vacancy occurs.” The board member lives in Supervisor District 2. An election will be held on November 5, 2019 to elect board members from District 4 and District 5.

Specifically, I have the following questions regarding Mississippi Code Ann. Section 37-7-104.6 and

Mississippi Code Ann. Section 37-5-19:

1. How would a post-consolidation school board fill a vacancy on the Board following a school board member's resignation if an upcoming election will resolve the vacancy issue?

2. If the answer to Question 1 is to follow Mississippi Code Ann. Section 37- 5-19, may the school board appoint someone from the District where the ““vacant” school board member resides?

Response

Response 1. A vacancy on the Greenwood Leflore Consolidated School Board should be filled in accordance with Section 37-5-19 of the Mississippi Code. This section provides that the vacancy must be filled by appointment within 60 days after the vacancy occurs. Because the term for this position expires January 1, 2020, the interim appointee will serve the remainder of the term without the necessity of conducting a special election.

Response 2. No. If the person who resigned from the school board would ultimately be replaced by a qualified elector elected from Supervisor Districts 4 or 5 under Section 37-7- 104.6(3)(a)(ii), the person appointed to fill the vacancy must also be a qualified elector of Supervisor Districts 4 or 5.

Applicable Law

Section 37-7-104.6(3)(a) of the Mississippi Code provides:

On July 1, 2018, the State Board of Education shall serve the local school boards of the Leflore County School District and the Greenwood Municipal Separate School District with notice and instructions regarding the timetable for action to be taken to comply with the administrative consolidation required in this section. The State Board of Education shall require the administrative consolidation of Leflore County School District and the Greenwood Municipal Separate School District on or before July 1, 2019. In the new Greenwood-Leflore School District, there shall be a new phased-in County Board of Education comprised of five (5) members elected to staggered terms of office from single member supervisors districts in the manner prescribed in this subsection. Current members of the Board of Trustees of the Greenwood Public School District serving on November 1, 2017, shall continue in office as the new County Board of Education of the Greenwood-Leflore School District until their successors are elected as follows:

(i) The two (2) appointed board members of the Greenwood Public School District whose terms are nearest to expiration shall expire on January 1, 2019, and thereafter become permanently elected positions to be filled by persons elected as board members from Supervisors Districts 2 and 3 in a November 2018 election held for that purpose, in the manner prescribed in Section 37-7-203, and the newly elected members will take office on January 1, 2019, for a term of four (4) years;

(ii) The final two (2) appointed board members of the Greenwood Public School District whose terms are the farthest removed from expiration shall expire on January 1, 2020, and thereafter become permanently elected positions to be filled by persons elected as board members from Supervisors Districts 4 and 5 in a November 2019 election held for that purpose, in the manner prescribed in Section 37-7-203, and the newly elected members will take office on January 1, 2020, for a term of four (4) years; and

(iii) One (1) appointed board member of the Greenwood Public School District whose term is next nearest to expiration shall expire on January 1, 2021, and thereafter become a permanently elected position to be filled by a person elected as a board member from Supervisors District 1 in a November 2020 election held for that purpose, in the manner prescribed in Section 37-7-203, and the newly elected members will take office on January 1, 2021, for a term of four (4) years.

On May 25, 2018, our office opined that vacancies on the Greenwood Leflore Consolidated School Board, both pre consolidation and post consolidation, should be filled pursuant to Section 37-5-19, which states:

Vacancies in the membership of the county board of education shall be filled by appointment, within sixty (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 school district is under conservatorship and no members of the county board of education remain in office, the Governor shall call a special election to fill the vacancies and said election will be conducted by the county election commission.

In the event the vacancy occurs more than five (5) 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 (2) 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.

MS AG Op., Palmer (May 25, 2018). According to your request, the board member who resigned was one of the two board members whose term was set to expire January 1, 2020, pursuant to Section 37-7-104.6(3)(a)(ii). This subsection further provides that these two positions are to “become permanently elected positions to be filled by persons elected as board members from Supervisors District 4 and 5 in a November 2019 election held for that purpose.” Miss. Code Ann. Section 37-7-104.6(3)(a)(ii). We have previously opined that if an original member of the Greenwood Leflore Consolidated School District vacates his office, the person appointed to fill the vacancy must meet the qualifications that apply once the position becomes a permanently elected position. MS AG Op., Palmer (July 9, 2018). Thus, it is the opinion of this office that under the scenario described in your request, the person appointed to fill the vacancy should be a qualified elector of Supervisor District 4 or 5.

Very truly yours,