Mississippi Advisory Opinions October 22, 1982: AGO 000003496 (October 22, 1982)

AGO 000003496.

Dear Mr. Chandler:

Attorney General Bill Allain has received your letter of request dated September 23, 1982, and has assigned it to me for research and reply. Your inquiry states as follows:

I am writing this letter pursuant to our telephone conversation the other day. As I advised you, one of the members of the Calhoun County Board of Education resigned at the September, 1982 meeting, effective immediately. His term would have expired this year. His successor would have taken office in January, 1983. Unfortunately, no one qualified to run in the November, 1982 election for the post in that district, and the deadline has now passed.

It is my understanding of the law that the school board has the authority to appoint someone to fill the unexpired term, and such appointment must be made within sixty (60) days from the time of the vacancy. However, I am in a quandary as to the mechanics of filling the four (4) year vacancy which now exists since no one qualified to run for the post.

Should the County call a special election for the full term beginning in January, 1982 or could the Board appoint someone to fill the full term? I would appreciate an opinion on this matter so that the Board may immediately take steps to correct this situation.

Mississippi Code Ann. upon 37-5-19 (1972) provides: Vacancies in the membership of the county board of education shall be filled by appointment, within 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 appli- cable to the election of a member for the full term.

In the event the vacancy occurs more than five 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 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.

Under this statute vacancies are generally filled by appointment by the remaining members of the county board of education within 60 days after they occur. The appointee serves until the first Monday of January after the next general election at which general election a member shall be elected to fill the remainder of the unexpired term.

Under the set of facts you present to us a vacancy occurred prior to the next general election and no one qualified as a candidate for the remainder of the unexpired term at this next general election. Therefore, your board continues to have a vacancy. Under those facts, it is our opinion that your board could appoint an individual from the qualified electors of the district in which the vacancy occurs to fill the remainder of the unexpired term until the next general election. Of course, this presumes the remaining members of your board can agree on an appointment.

If the remaining members of the 'county board of education are unable to agree upon an appointee and since there are more than five months until the next general election at which an individual could be elected to fill the vacancy then it is our opinion that any two of the remaining members may certify this disagreement to the county election commission and a special election could be held. However, we emphasize that this course of action should be taken only when the remaining members can- not agree on an appointment.

If this office can be of benefit in the future, please do not hesitate to contact us.

Sincerely,

BILL ALLAIN, ATTORNEY GENERAL STATE OF MISSISSIPPI

BY:

Susan L. Runnels Special Assistant Attorney General

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