Mississippi Advisory Opinions March 11, 1992: AGO 000005692 (March 11, 1992)

AGO 000005692.

Dear Mr. Dorrill:

Attorney General Mike Moore has received your letter of request concerning the appointment/election of the trustees of the Kosciusko School District and has assigned it to me for research and reply. A copy of your letter is attached for reference.

From your letter we understand that the Kosciusko School District is a municipal separate school district with added territory. You present six (6) questions involving the provisions of Mississippi Code Annotated Section 37-7-203 (Revised 1990) (copy attached) which we will restate and respond to in sequence.

QUESTION 1: The first paragraph of Section (1) of Section 37-7-203 provides that if the territory outside of the municipality "... furnishes thirty percent (30%) or more of the pupils enrolled in the schools of such district, then not more than two (2) members of the Board of Trustees of such school district shall be residents of the added territory outside the corporate limits."

Does the phrase "not more than two" require that there be two trustees if more than 30% of the students come from outside the municipality or, since one is "not more than two," could the district continue to have only one trustee from outside the municipality?

RESPONSE: In a prior opinion concerning the Kosciusko School District addressed to Honorable A.D. McBeath, dated September 9, 1987 we stated that where the added territory furnishes thirty percent (30%) or more of the pupils enrolled in the district it is not mandatory that two (2) members of the board of trustees be residents of the added territory. We stated that at least one (1) trustee must be a resident of the territory and opined that it is within the discretion of the municipal governing authorities whether to have two (2) members of the board of trustees elected from the added territory. However, this matter has been recently addressed by the U.S. District Court, Southern District, Mississippi in Crawford et al. v. City of Richton, Civil Action No. H89-0093 (W). The Court in interpreting Section 37-7-203 said:

".... The statute contemplates times and circumstances where pupils from an added territory might number more than thirty percent (30%) of the total number of pupils enrolled in the school district, yet in the absence of exceptions found in the statute, the statute provides for a majority always to be appointed. In the event a municipal separate school district has no added territory, all five members of the board are appointed pursuant to the statute. Once a territory is added, that territory has no right to a board member until the territory furnishes fifteen percent (15%) or more of the pupils in the school district. A second member does not represent the added territory until thirty percent (30%) or more of the pupils reside there. ...."

The clear implication of the Court's statement is that when thirty percent (30%) or more of the pupils of the district reside in the added territory it becomes mandatory that two (2) trustees be elected from said territory. Therefore our opinion addressed to Honorable A.D. McBeath, dated September 9, 1987 is hereby modified to comply with the above cited and quoted case.

QUESTION 2: In the event your construe the statute to authorize the territory outside of the corporate limits to have only one trustee even though more than 30% of the students come from outside the corporate limits, would the statute stand attack by the "one man - one vote" doctrine? (I believe it would be a fairly safe assumption that if 31% of the students come from outside of the corporate limits that approximately 31% of the total inhabitants of the school district live outside of the corporate limits. This 31%, however, only has 20% of the representation on the Board of Trustees.)

RESPONSE: Our response to Question 1 renders this question moot. However, for your information, the Court in Crawford ruled that since the board in question is essentially appointive, the one man, one vote principle has no application.

QUESTION 3: The first paragraph of Section (1) of Section 37-7-203 states that if 15% or more of the pupils enrolled in the district are from outside the added territory then at least one member of the Board of Trustees shall be a resident of the added territory and in the event 30% or more of the students enrolled in the schools of the district are from the added territory then not more that two members of the Board of Trustees shall be residents of the added territory outside the corporate limits.

The statute is silent, however, as to whether the governing authorities of the municipality or the Board of Trustees of the school district have the authority to make such a decision, if such a decision is discretionary.

If such a decision is discretionary, would the Board of Aldermen or the Board of Trustees have the authority to decide whether there would be one or two members of the board from outside of the municipality?

RESPONSE: Our response to Question 1 expressing the opinion that it is mandatory that two (2) trustees be elected from the added territory when thirty percent (30%) or more of the pupils reside in said territory renders this question moot.

QUESTION 4: The first paragraph of Section (1) of Section 37-7-203 states that each trustee shall be "chosen for a term of five (5) years, but the term of office of one (1) member shall expire each year."

The fourth paragraph of Section (1) of Section 37-7-203 states that vacancies shall be filled for the unexpired terms.

If the Board of Aldermen appointed someone from within the corporate limits the appointment would obviously be for the unexpired term of the resigning trustee.

If the Board of Aldermen appointed a trustee from outside the municipality to succeed a trustee who served from outside the municipality the appointment would obviously be until the first Saturday of March, at which time an election would take place.

The Kosciusko situation is unique, however, in that if a trustee is appointed from the added territory of the district by the Board of Aldermen the trustee would not be replacing a trustee from the territory outside of a municipality. This could be considered the creation of a new trustee ab initio.

A trustee appointed from territory outside the municipality to fill a vacancy created by the resignation of a trustee from within the municipality would apparently serve only until the first Saturday in March following his appointment. At that time an election would be held.

Would the winner of the election serve for the remainder of the unexpired term of the trustee within the municipality who had resigned, or would the trustee from the territory outside the municipality who is elected on the first Saturday of March serve a full five year term?

RESPONSE: Section 37-7-203 provides in part:

"All vacancies shall be filled for the unexpired terms by appointment of the governing authorities of the municipality; except that in the case of the trustees coming from the added territory outside the corporate limits, the person so appointed shall serve only until the first Saturday of March following his appointment, at which time a person shall be elected for the remainder of the unexpired term in the manner otherwise provided herein."

We note that the first Saturday of March, 1992 has passed. It is our opinion that the municipal governing authorities, in order to comply with our previously expressed opinion, may lawfully adopt an order or resolution providing that the office which is now vacant is an office to be filled by a qualified elector of the added territory. Said governing authorities may then proceed to appoint a qualified elector of the added territory who will serve until the first Saturday of March, 1993 at which time a person shall be elected for the remainder of the unexpired term.

QUESTION 5: The third paragraph of Section (1) of Section 37-7-203 states that when part of a county school district is reconstituted into a separate municipal school district:

"in the event the added territory of a municipal separate school district of a municipality furnishes thirty percent (30%) or more of the pupils enrolled in the schools of such district, then two (2) members of the Board of Trustees shall be residents of the added territory outside the corporate limits of such municipality and shall be elected from special trustee election districts by the qualified electors thereof as herein provided."

You will notice that this paragraph states "two (2) members of the Board of Trustees shall be residents of the added territory" and not "not more than two (2) members of the Board of Trustees of such school district shall be residents of the added territory." Does the third paragraph of Section 37-7-203 only apply at the time that a county school district is reconstituted into a municipal separate school district with added territory, or would the third paragraph apply in perpetuity to such reconstituted school districts?

The Kosciusko School District added the East Union, New Progress, Hesterville, Knox, Dossville, Springdale and Williamsville School Districts, or parts of these Districts, in 1953. All of these schools were county schools.

RESPONSE: Please see the enclosed copy of an opinion addressed to Honorable J. Lonnie Smith, dated December 23, 1986. In summary, Smith states that when it becomes mandatory that two trustees of a municipal separate school district be elected from it added territory said change is subject to the preclearance requirements of Section 5 of the Voting Rights Act of 1965, as amended. It further states that if the U.S. Attorney General objects to the at-large elections and specifically requests that the trustees be elected from separate election districts within the added territory, it becomes the responsibility of the municipal governing authorities to apportion the added territory into two (2) districts.

QUESTION 6: The third paragraph of Section (1) of Section 37-7-203 indicates that separate election districts for the trustees in the added territory are permitted if requested by the Attorney General.

(a) If a decision is made to have two trustees from the territory outside of the municipality, can the local authorities establish separate election districts without the Attorney General making such a request?

(b) If Section 37-7-203 does not require separate voting districts, would separate voting districts not be required in order to prevent diluting black voting strength, and to create a district with a black voting age majority?

(c) If separate voting districts are preferred or required, would the Board of Aldermen or the Board of Trustees have the authority to establish the election district lines in the territory outside of the municipality?

(It seems somewhat anomalous for aldermen of a municipality to be drawing district lines for a district outside of that municipality.)

RESPONSE: As stated in our response to Question 5, a prerequisite to the municipal governing authorities creating separate trustee election districts is a request from the U.S. Attorney General. With respect to your several inquiries under Question 6, these questions primarily involve an interpretation of federal law (i.e. Section 2 of the Voting Rights Act of 1965). Under Mississippi Code Annotated Section 7-5-25 (Supp. 1991) this office is unable to render official opinions involving the interpretation of federal law. We would point out that the decision of Thornburg v. Gingles, 478 U.S. 30 (1986) requires an intensely local appraisal of the particular facts involved before a determination can be made whether a particular election method results in a dilution of minority voting strength.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Special Assistant Attorney General PC:mfd Enclosure