Mississippi Advisory Opinions September 10, 1986: AGO 000010415 (September 10, 1986)

AGO 000010415.

Dear Mr. Chaney:

Attorney General Edwin Lloyd Pittman has received your request for an official opinion from this office and has assigned it to me for research and reply.

As attorney for the Warren County Board of Education you request an opinion regarding the election of trustees for a newly created special municipal separate school district pursuant to Mississippi Code Annotated 37-7-717(b) (1972). Because of the length of your inquiry, a copy is attached hereto and made a part of this opinion as if copied herein. Mississippi Code Annotated 37-7-7(b) (1972) provides:

Upon complying with the terms and provisions of section 37-7-715, hereof, the board of supervisors of any county wherein there is a special municipal separate school district and the governing authorities of the municipality may provide that the board of trustees of such special municipal separate school district shall be organized and constituted in one of the following manners: * * * * (b) In case of a special municipal separate school district which embraces the entire county, the board of trustees may be constituted and selected in accordance with the terms and provisions of sections 37-7-707 to 37-7-711, with the exception that one member of such board shall be elected by such supervisors district and shall be a resident and qualified elector of the district from which he is elected.

We submit the following responses to your questions: 1. In the event preclearance of the newly created special municipal separate school district is received from the U. S. Department of Justice under Section 5 of the Voting Rights Act of 1965, then pursuant to Mississippi Code Annotated 37-7-707 (1972), the election of trustees is to take place at the first regular general election following approval by the Educational Finance Commission, which would be November, 1986, with the trustees to take office on July 1, 1987. If preclearance is not received in time for candidates to qualify for the office of trustee in the November 1986 election, the duly elected and appointed members of the present boards of trustees would hold over in office until the general election in November 1987.

2. Trustees of the two districts will continue to hold office until July 1, 1987, or for such time as remains in their term of office up to July 1, 1987 with any vacancies which may occur being filled by appointment pursuant to Mississippi Code Annotated 37-7-709 (1972).

3. Mississippi Code Annotated 37-7-707 (1972) states: At such election the members of the said board from supervisors districts one and five shall be elected for a term of six years, the members from districts three and four shall be elected for a term of four years, and the members (sic) from district two shall be elected for a term of two years.

The members of the board are to be elected accordingly.

4. In order to qualify for the office of trustee of the new school district, a candidate must file a petition of nomination signed by not less than 150 qualified electors of the supervisor's district from which he is running within the time and manner specified in Mississippi Code Annotated 37-7-711 (1972).

5. Being on the ballot for a seat on the board of the existing school board would not prevent a candidate from also being on the ballot for the new school board. If no one qualifies for the existing county school board posts, under Mississippi Code Annotated 25-1-7 (1972) the present members in office would hold over until July 1, 1987.

In response to your inquiry concerning preclearance of the abolition of the existing school districts and formation of a new school district by the U. S. Justice Department under Section 5 of the Voting Rights Act of 1965; until and unless such preclearance is obtained, such merger is not effective. Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003 (1975), 44 L.Ed.2d 486; Allen v. Board of Elections, 393 U.S. 544, 89 S.Ct. 817 (1969), 22 L.Ed. 2d 1.

Furthermore, we are aware of no such provision which would authorize the holding of a special election subsequent to the next regular general election in November should Justice Department approval not be forthcoming.

Sincerely yours, EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY Frankie Walton White Assistant Attorney General FWW:mfd Enclosure ..DOCK: 86-402