Mississippi Advisory Opinions September 25, 1991: AGO 000005384 (September 25, 1991)

AGO 000005384.

Dear Ms. Cook:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

"Ms. Rena Ellis was elected for a six year term as School Board Member, District 5, Oktibbeha County, Mississippi, beginning January 1, 1991. On Tuesday, September 3, 1991, Ms. Ellis resigned her position. An appointment was made to fill the vacancy until such time as an election could be held.

When can such election be held, and, if it should be at the General Election, 1992, could the candidates names be on the same ballot but labeled (Special Election)?" In response to your inquiry, the election cannot be held until November of 1992. Mississippi Code Annotated Section 37-5-19 (1990), states, in part, that:

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 applicable to the election of a member for the full term.

Furthermore, Mississippi Code Annotated Section 23-15-835 (1990), states that:

The commissioners of election of the several counties to whom the writ of election may be directed shall, immediately on the receipt thereof, give notice of such special election to fill a vacancy in such county or county district office by posting notices at the courthouse and in each supervisor's district in the county for ninety(90) days prior to such election; and such election shall be prepared for and held as in case of a general election.

Also, Mississippi Code Annotated Section 37-5-9 states, in part:

The name of any qualified elector who is a candidate for the county board of education shall be place on the ballot used in the general elections by the county election commissioners, provided that the candidate files with the county election commissioners, not more than ninety (90) days and not less than sixty (60) days prior to the date of such general election.

The commissioners must give notice of such election to fill such a vacancy ninety (90) days prior to the election, and each candidate must qualify sixty (60) days before the election.

Since the notice requirement cannot be complied with, it is the opinion of this office that the election in question must not be held until the 1992 General Election. The appointed member would serve until January, 1993 at which time the newly elected member would assume the office and serve the remainder of the term.

Since the election will be held on the same day as the November, 1992 General Election, the following provisions of Section 23-15-833 would apply:

In those years when the regular special election day shall occur on the same day as the general election, the names of candidates in any special election and the general election shall be placed on the same ballot, but shall be clearly distinguished a general election candidate or special election candidate.

The special election to fill the vacancy on the school board must be on the general election ballot but must be designated "Special Election".

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Special Assistant Attorney General PC:mfd