Mississippi Advisory Opinions January 26, 1989: AGO 000008595 (January 26, 1989)

AGO 000008595.

Dear Mr. McRae:

Attorney General Mike Moore has received your letter requesting an opinion and has assigned it to me for research and reply.

Your letter states as follows, to-wit:

The elected Superintendent for the Jackson County School District has resigned, effective December 31, 1988. I have reviewed the laws that pertain to this situation and there appears to be some confusion and possibly several interpretations on how this position should be filled. Under Section 37-5-75 of the Mississippi Code of 1972 it says that the Board of Trustees will appoint the superintendent and will have an election if the unexpired term is more than a year. The unexpired term will end in 1990. It then referred to Section 23-5-197 which was repealed. Section 23-5- 839 of the 1972 Code, being a general code section may apply; however, we would need your interpretation.

Please advise the following:

1. Which entity (Board of Supervisors or School Board) appoints an intermsuperintendent [sic] to fill the unexpired term?

2. Is the School Board to appoint a superintendent until the next general election since 37-5-75 does not have any provisions for a general election?

Section 37-5-75, Miss. Code of 1972, which is a specific statute governing the filling of vacancies in the office of county superintendent of education, applies to the situation you describe. Under the provisions of this statute, the county board of education makes the appointment to fill the vacancy.

The precise language of Section 37-5-75, supra, is as follows, to-wit:

Section 37-5-75. Filling of vacancy in office of county superintendent.

If a vacancy shall occur in the office of county superintendent of education, such vacancy shall be filled by appointment by the county board of education. If the unexpired term shall exceed six months, it shall be the duty of the board of supervisors of the county to call a special election to fill such vacancy for such unexpired term, which said election shall be called and held in the manner provided by section 23-5- 197. In such case the person so appointed by the county board of education shall hold office only until such election is held and the person elected thereat shall qualify and enter upon the discharge of his duties.

As required by the above statute, the special election to fill a vacancy is to be called and held in the manner provided by Section 23-5-197, Miss. Code of 1972. Section 23-5-197 was repealed along with numerous other election laws upon the enactment of the Mississippi Election Code in 1986 (Chapter 495, 1986 Laws of Mississippi). The provisions of Section 23-5-197 have been substantially readopted and reenacted by Chapter 495 Section 252, 1986 Laws of Mississippi and amended by Chapter 499, Section 17, 1987 Laws of Mississippi. This enactment is now codified as Section 23-15-839. It provides in part:

"... and if the unexpired term be longer than six (6) months, such appointee shall serve until a successor is elected as hereinafter provided, unless the regular special election day on which the vacancy should be filled occurs in a year in which an election would normally be held for that office as provided by law, in which case the person so appointed shall serve the unexpired portion of the term. Such vacancies shall be filled for the unexpired term by the qualified electors at the next regular special election day occurring more than ninety (90) days after the occurrence of the vacancy. The board of supervisors of the county shall, within ten (10) days after the happening of the vacancy make an order, in writing, directed to the commissioners of election, commanding an election to be held on the next regular special election day to fill the vacancy. The election commissioners shall require each candidate to qualify at least sixty (60) days before the date of the election, and shall 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, showing the results thereof, certified by the clerk of the board of supervisors. The person elected shall be commissioned by the Governor.

Section 23-15-833, Miss. Code Ann. (Supp. 1988), which establishes the special election day provides in pertinent part as follows:

Except as otherwise provided by law, the first Tuesday after the first Monday in November of each year shall be designated the regular special election day, and on that day an election shall be held to fill any vacancy in county, county district, and district attorney elective offices.

Therefore, in view of the above statutes, it is the opinion of this office that the trustees of the county board of education should fill the vacancy by appointment and that since the unexpired term is longer than six (6) months, a special election should be called by the board of supervisors to be held on November 7, 1989 in accordance with the procedures set forth in Sections 23-15-839 and 23-15-833, supra. Accordingly, the individual appointed by the board of education would serve until replaced by his successor immediately following the November, 1989 special election.

Very truly yours,

MIKE MOORE, ATTORNEY GENERAL

By: Giles W. Bryant Special Assistant Attorney General

/jw