Mississippi Advisory Opinions December 18, 1980: AGO 000001961 (December 18, 1980)

AGO 000001961.

Dear Mr. Mitchell:

Attorney General Bill Allain has received your letter and has assigned it to me for research and reply. Your letter states in part:

"...The City of Pascagoula, Mississippi, operates under the council-manager form of government with six councilmen and a mayor.

"In September 1979 one of the councilmen elected in 1977 died and the vacancy was filled by a special election soon thereafter. In October 1980 a second councilman resigned and the vacancy was filled by a special election. The newly elected councilman has not yet been sworn in.

"This past Saturday, December 13, 1980, Mayor B. L. Briggs died. His term would have expired in early July 1981. ..."

You pose several questions to which we respond in turn:

"1. In view of Sections 21-11-9 and 21-15-5, Mississippi Code of 1972, is a special election required to fill the vacancy in the office of mayor or can an appoint- ment be made by the remainder of the City Council?"

RESPONSE: The cited sections provide in part or while:

" 21-11-9. Election to fill vacancy in elective office; time for holding.

When it shall happen that there is any vacancy in an elective office in a city, town or village, the unexpired term of which shall exceed six months, the governing au- thority, or remainder of the governing authority, of said city, town or village shall make and enter on the minutes an order for an election to be held in such city, town or village to fill the vacancy. At least thirty days' notice of such election shall be given. Each candidate is requir- ed to qualify at least ten days before the date of the elec- tion. If no candidate shall receive a majority vote at the election, the two candidates receiving the highest number of votes shall have their names placed on the ballot for the e- lection to be held one week thereafter.

The candidate receiving a majority of the votes cast in said election shall be elected. The clerk of the election commission shall then give a certificate of election to the person elected, and shall return to the secretary of state a copy of the order of holding the election and runoff elec- tion, showing the results thereof, certified by the clerk of the governing authority. The person elected shall be commis- sioned by the governor.

However, if nine days prior to the date of the election only one person shall have qualified as a candidate, the go- verning authority, or remainder of the governing authority, shall dispense with the election and appoint that one candi- date in lieu of an election. In the event no person shall have qualified-at least ten days prior to the date of the e- lection, the governing authority, or remainder of the govern- ing authority, shall dispense with the election and fill the vacancy by appointment. The clerk of the governing authority shall certify to the secretary of state the fact of the ap- pointment, and the person so appointed shall be commissioned by the governor." (Emphasis Supplied)

" 21-15-5. Appointment to fill vacancy in public office.

When it shall happen that there is any vacancy in a city, town or village office which is elective, the unex- pired term of which shall not exceed six months, the same shall be filled by appointment by the governing authority, or remainder of the governing authority, of said city, town or village. The municipal clerk shall certify to the secre- tary of state the fact of such appointment, and the person or persons so appointed shall be commissioned by the gover- nor."

In responding to your questions, it is assumed that the next general election for the offices of the Pascagoula governing authorities will be held in accordance with the provisions of Section 21-11-7: It will be held on the first Tuesday after the first Monday of June, 1981.

A special election is-required to fill the vacancy in the office of Mayor of Pascagoula.

"2. If a special election is required, when must it be called?"

RESPONSE: Reference is also made to Section 21-11-11 of the Code:

" 21-11-11. Time for holding special elections.

Whenever under any statute a special election is required or authorized to be held in any municipality, and the statute authorizing or requiring such election does not specify the time within which such election shall be called, or the notice which shall be given thereof, the governing authorities of the municipality shall, by resolution, fix a date upon which such elec- tion shall be held. Such date shall not be less than twenty-one nor more than thirty days after the date u- pon which such resolution is adopted, and not less than three weeks' notice of such election shall be given by the clerk by a notice published in a newspaper published in the municipality once each week for three weeks next preceding the date of such election, and by posting a copy of such notice at three public places in such muni- cipality.

In responding to the second question, Sections 21-11-9 and 21-11-11 are read together.

Therefore, the special election is to be held on a date which is at least thirty days from the date the first notice is given and thirty days from the date upon which the resolution is a- dopted to fix the date for the election.

"3. If a special election is required to fill the vacancy, what would be the effect of a failure to do so?"

RESPONSE: The office vacated by reason of the office holder's death would remain vacant until filled at the next municipal general election.

"4. If the City Council waits until less than six months of the unexpired term remains and then appoints some- one to the office of mayor would the person so appoin- ted lawfully hold office?"

RESPONSE: No.

With kind regards, I am

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY:

S. E. Birdsong, Jr. Assistant Attorney General

SEB,Jr./mg