Mississippi Advisory Opinions March 23, 2001: AGO 000014298 (March 23, 2001)

AGO 000014298.

Dear Mr. Hatcher:

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

I represent the Town of Farmington, Mississippi, which is scheduled for municipal elections. Farmington is in Alcorn County, Mississippi, and is a code-charter town with no wards.

No one qualified for the upcoming municipal election in party primaries. All candidates qualifying qualified for the general election with no party affiliation. One (1) person qualified for mayor and only four (4) persons qualified out of the five (5) positions for alderman.

The incumbent mayor qualified alone, and only one of the existing five (5) aldermen qualified for re-election. There will be one vacancy on the board of aldermen as it presently stands.

You then present five questions which we will repeat and respond to in the order presented.

Question 1: What procedure must be followed for selecting the fifth alderman when the term of office expires for the existing board of aldermen?

Response: In accordance with Mississippi Code Annotated, Section 21-15-1 (Revised 1990) the new term begins on July 2, 2001. Based on the facts presented in your letter, a vacancy on the board of aldermen will occur on that date. The new board must declare the vacancy and call a special election to fill said vacancy in accordance with Section 23-15-857.

Question 2: I have read Section 23-15-857 of the Mississippi Code 1972 Annotated and while it makes provisions for appointment where a vacancy occurs where the unexpired term does not exceed six (6) months that would not be the case here, because it will be for a full term, and I see where it makes provision for calling a special election if more than six (6) months, but in that instance is there an appointment made by the new board or other old board of aldermen prior to the special election?

Response: We find no provision for an appointment when the unexpired term exceeds six (6) months. Please note that Section 21-15-1 provides that elected municipal officials serve a term of four (4) years and until their successors are duly elected and qualified. Therefore, any one of the four incumbent aldermen who did not qualify could continue to serve until the special election is conducted.

Question 3: Is there a procedure for certifying that each of the candidates have won when they are not contested, such as in the manner of the last two (2) sentences of Section 23-15-857 of the Mississippi Code 1972 Annotated, and this applies in this instance to the four (4) aldermen at large, who have no opponents, and to the mayor?

Response: The provisions of Section 23-15-857 only applies to special elections to fill vacancies in municipal offices. We find no similar provisions applicable to municipal general elections.

Question 4: May there be a write-in candidate elected for the alderman at large post, which is vacant?

Response: A write-in candidate is appropriate only when one has qualified as a candidate for a particular office and subsequently dies, resigns, withdraws or is removed as a candidate. See Mississippi Code Annotated Section 23-15-365 (Revised 1990) and Upton v. McKenzie, 761 So. 2d 167 (Miss. 2000).

Question 5: Can a write-in candidate be elected for the position of mayor where no one else has qualified? I have read Section 23-15-365 of the Mississippi Code 1972, and then it only seems to apply in instances of death, resignation, withdrawal or removal, which would not be the case in this instance.

Response: Please see our response to Question 4.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General