Mississippi Advisory Opinions January 26, 1989: AGO 000008598 (January 26, 1989)

AGO 000008598.

Dear Mr. Carter:

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

In your letter, a copy of which is attached hereto and incorporated herein by reference, you present the following facts and questions for our consideration.

The Facts

1. At some point in time prior to the November 8, 1988 election, a vacancy on the board of trustees was created.

2. There was an appointment to temporarily fill that vacancy pending a special election.

3. The current regular term of the office in question expires on January 2, 1989.

4. On the November 8, 1988 ballot in Tippah County the only election for the office in question appeared as a "Special Election."

5. The qualifying petitions did not indicate that either candidate was seeking to fill the remainder of the unexpired term.

The Question

Based on the above stated facts and cited statutes and any other legal authority deemed applicable, should the Secretary of State issue a commission to the individual who received the greater number of votes for the remainder of the unexpired term which ends on January 2, 1989 or for a five-year period beginning January 2, 1989?

In addition to the above, this office has been advised by the successful candidate involved that he presented himself to the voters of Tippah County as a candidate for a full five-year term and that at no time was it his intention to qualify and run for the unexpired term of two (2) months.

As stated in your letter, Section 37-7-225 governs the filing of petitions of candidates for school trustees of consolidated districts and provides in part:

"The county election commissioners shall place the name of any person eligible to hold the office of trustee on the ballot used in the election, provided that such candidate shall have filed with said election commissioners, not more than ninety (90) days and not less than forty (40) days prior to the date of such election, a petition of nomination signed by not less than fifty (50) qualified electors of the school district. Where there are less than one hundred (100) qualified electors in said district, it shall only be required that said petition of nomination be signed by at least twenty percent (20%) of the qualified electors of such school district. If such person be a candidate for an unexpired term, he shall indicate the term for which he is a candidate in such petition; otherwise he shall be deemed to be a candidate for a full term." (Emphasis added)

In view of the above emphasized language of Section 37-7- 225, supra, it was clearly an error to place this election on the general election ballot as a special election since the qualifying petitions did not indicate that either candidate was seeking to fill the remainder of the unexpired term. Under the provisions of Section 37-7-225, supra, the candidates should have been "deemed to be ... candidate[s] for a full term."

Erroneously placing the candidates names on the ballot under the heading of a special election cannot in our view override the express mandate of the statute; therefore, it is the opinion of this office that the commission to be issued by your office should be for a full five (5) year term beginning January 2, 1989.

Very truly yours,

MIKE MOORE, ATTORNEY GENERAL

Giles W. Bryant Special Assistant Attorney General