Mississippi Advisory Opinions January 26, 1989: AGO 000008562 (January 26, 1989)

AGO 000008562.

Dear Ms. Staten:

Attorney General Mike Moore has received your letter requesting an opinion from this office and has assigned it to mp for research and reply.

In your letter, a copy of which is attached hereto and incorporated herein, you set forth facts relating to Pearl River County's proposed school board redistricting plan and pose several questions in connection therewith.

Additionally, we have been advised by Mr. Ray Stewart, Attorney for the Board of Supervisors of Pearl River County, Mississippi, that due to the proscriptions of Section 37-5-3, Miss. Code of 1972, coupled with the location of the supervisors district lines in relation to the boundaries of the municipal school districts situated in Pearl River County, it was determined that county school board elections could not be conducted based on supervisors district lines. Accordingly, no such elections were held at the November 8, 1988 Regular Election.

While we cannot comment on the propriety of not holding county school board elections at the November 8, 1988 Regular Election, we can address your questions which are prospective in nature. For purposes of clarity, we will restate your questions.

Question No. 1: When should elections for school boards be held after our county's proposal is approved?

Response: Section 37-5-7(2), Miss. Code Ann. (Supp. 1988) provides inter alia: "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 county in this state for the purpose of electing the county boards of education in such counties."

It is the opinion of this office that if the Board of Supervisors enters an order after January 1, 1989 establishing the new county school board lines and these are precleared under Section 5 of the Voting Rights Act of 1965, as amended and extended, then the school board elections under the new plan should be held on November 7, 1989.

Question No. 2: Will members presently serving as school board members continue in the same capacity until an election can be held?

Response: By virtue of Sections 136 and 138 of the Constitution of 1890, county school board members have the authority to hold over until their successors are elected and duly qualified to assume the duties of the office. Section 136 of the Constitution of 1890 provides as follows:

Section 136. All officers named in this article shall hold their offices during the term for which they were selected, unless removed, and until their successors shall be duly qualified to enter on the discharge of their respective duties.

Section 138 of the Constitution of 1890 provides as follows:

Section 138. The sheriff, coroner, assessor, surveyor, clerks of courts, and members of the board of supervisors of the several counties, and all other officers exercising local jurisdiction therein, shall be selected in the manner provided by law for each county.

It is the opinion of this office that since county school board members come within the provisions of Section 138, supra, they likewise come within the purview of Section 136, supra, Accordingly, under Section 136 of the Constitution of 1890, these officers have the authority to hold their offices until their successors are selected in the manner provided by law.

If county school board elections are held in November, 1989 under the new plan, then the officials elected at that time would take office in January, 1990. Accordingly, county school board members whose terms have already expired would continue to hold office until replaced by their successors in January, 1990.

Question No. 3: Will elections for all five positions be held at the same time, and if so, what date will each term expire?

Response: Section 37-5-7(2), Miss. Code Ann. (Supp. 1988), calls for the election of all five (5) members of the county boards of education as follows:

(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 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.

Under the above statute, if the order adopting the new districts is entered after January 1, 1989, and they are precleared under Section 5 of the Voting Rights Act, then elections for all five (5) positions are statutorily called for on the first Tuesday after the first Monday in November, 1989. Under this statute, the terms of the members to be elected from Districts 1 and 2 expire January, 1994. The terms of the members to be elected from Districts 3 and 4 expire January, 1996, and the term of the member to be elected from District 5 expires January, 1992.

Question No. 4: Will candidates qualify and elections be held in the same manner as in a general election for school board members?

Response: Candidates will qualify and the elections should be held in the same manner as in a general election for school board members as provided for by Section 37-5-9, Miss. Code Ann. (Supp. 1988).

Sincerely,

Mike Moore, Attorney General

By: Giles W. Bryant Special Assistant Attorney General

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