Mississippi Advisory Opinions December 09, 1993: AGO 000007110 (December 9, 1993)

AGO 000007110.

Dear Mr. Hatcher:

Attorney General Mike Moore has received your recent letter on behalf of the Town of Marietta and has asked me to respond. In your letter you state that the prior Board of Aldermen and Mayor whose term ended June 30, 1993, voted to rename the City Park. You then ask eleven questions concerning a nonbinding referendum which are answered below.

(1) May a referendum be conducted concerning the name of the Municipal Park, which is solely owned by the City?

The attached opinion to Walter Brown, October 16, 1989, states that pursuant to Miss. Code Ann. Section 21-17-5(Supp. 1993) a municipality may conduct elections on issues falling within the city's jurisdiction and on which the legislature is silent regarding methods of determining the will of the electorate, provided the governing authorities determine that appropriation of public monies for such purposes is in the city's best interest. Therefore, a municipality may conduct a nonbinding referendum on the question of naming the city park pursuant to Section 21-17-5(Supp. 1993).

(2) If your answer in the preceding question is in the affirmative, may such a referendum be conducted within the Marietta voting precinct of Prentiss County, Mississippi, which encompasses an area greater than the corporate municipal limits of Marietta, Mississippi?

A nonbinding referendum does not bind the governing authorities to take a certain action. However, a nonbinding referendum involves expenditures of municipal funds and must concern an issue over which the city has jurisdiction. Therefore, we are of the opinion that a nonbinding referendum held by the governing authorities pursuant to Section 21-17- 5(Supp. 1993) must be confined to the corporate limits of the municipality.

(3) If your answer to the preceding question is in the affirmative, who should conduct this election; the Election Commissioners of Prentiss County, Mississippi, through the office of the Circuit Clerk of Prentiss County, Mississippi, or the Municipal Election Commission of Marietta, Mississippi?

The municipal election commission of Marietta should conduct a nonbinding referendum held pursuant to Section 21-17-5(Supp. 1993).

(4) If your answer to the question as to whether or not such a referendum could be held in the Marietta precinct of Prentiss County, Mississippi, is in the negative, may the Town of Marietta, Mississippi, conduct such a referendum?

Yes.

(5) If such a referendum is permitted, would it be binding upon the Board of Aldermen and the Mayor of the Town of Marietta, Mississippi, to accept the results thereof and name the Municipal Park accordingly?

A nonbinding referendum does not bind the governing authorities to take any certain action.

(6) May such a referendum be lawfully conducted by civic organizations such as the Lions Club, or the RCDC or perhaps other interested civic organizations?

A civic organization may conduct at its own expense a referendum for the benefit of the governing authorities.

(7) If such a referendum is lawfully conducted by a civic organization are the municipal authorities, the Board of Aldermen and the Mayor obligated to accept and impose the results thereof concerning the naming of the park?

The governing authorities are not required to take any official action pursuant to the results of a nonbinding election conducted either by the governing authorities or a civic organization.

(8) If such an election can be conducted within the Marietta Voting precinct of Prentiss County, Mississippi, may the expenses thereof be shared by the Town of Marietta, Mississippi, and Prentiss County, Mississippi, and if not, who should bear same?

A nonbinding referendum for the purpose of gaging public opinion on an issue over which the city has jurisdiction is for the benefit of the governing authorities and should be limited to voters within the corporate limits. The expenses of a referendum for the benefit of the governing authorities should be paid out of the general funds of the municipality.

(9) If such a referendum can lawfully be conducted by the Town of Marietta, Mississippi, is it limited solely to permitting registered voters of the Town of Marietta, Mississippi, to participate, or may other interested parties participate by voting?

If the governing authorities are conducting the referendum at public expense, they may not allow persons who are not registered voters to vote.

(10) What would be the lawful procedure for initiating such a referendum by whomever same may be conducted?

The proper procedure for initiating a nonbinding referendum would be an order or resolution spread upon the minutes.

(11) May such a referendum be held in a special election, or with a party primary, or must it be held at the same time as the general election?

A nonbinding referendum may be held at any time and may coincide with any primary, special or general election.

If we may be of any further assistance, please let us know.

Sincerely yours, MIKE MOORE ATTORNEY GENERAL

By: ____________________________________ Alice D. Wise Special Assistant Attorney General

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