K.Featherstone - September 17, 2024 - Swearing In Alderman

550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 September 17, 2024 The Honorable Ken Featherstone Mayor, City of Indianola 101 Front Street Indianola, Mississippi 38751 Re: Swearing In of Member of Board of Aldermen Dear Mayor Featherstone: The Office of the Attorney General has received your request for an official opinion. Question Presented If a duly reelected member of the board of aldermen has not been sworn in for each new term (every four years), but was initially sworn in under a previous administration, is there any effect on the laws and ordinances the subject alderman voted on? Brief Response Assuming Indianola’s special charter is silent on this question, at a minimum, the subject alderman would be considered a de facto officer, and a de facto officer’s official acts are valid and binding. Applicable Law and Discussion As an initial matter, if Indianola’s special charter speaks to this issue, then the charter controls. See MS AG Op., Gaylor at *1 (Dec. 15, 2006) (“[W]here the provisions of a special charter conflict with general law[,] . . . the specific provisions of a municipal special charter will take precedence over the provisions of general municipal law.”); MS AG Op., Lowe at * 1 (Feb. 13, 2009) (“[P]rovisions of a special charter that are contrary to general statutory provisions are viewed by this office as exceptions to the general law, except where the general statutes expressly provide otherwise.”). However, because this office cannot interpret special charters, this opinion is limited to interpretation of state law. This office has previously opined that “[b]efore a municipal officer is qualified to discharge the duties and functions of that office, the officer must first be sworn in and take the oath of office as provided by Article 14, Section 268 of the Mississippi Constitution of 1890.” MS AG Op., Minor 550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 Hon. Ken Featherstone September 17, 2024 Page 2 at *1 (Mar. 18, 2005). Mississippi Code Annotated Section 21-15-3 likewise provides: “[a]t the first regular meeting of the governing authorities succeeding each regular municipal election, they shall elect the officers to be elected by them and such officers shall take the oath of office.” In your request, you indicate that the subject alderman was initially sworn into office under a previous administration but due to oversight was not re-sworn in for subsequent terms served. At a minimum, the subject alderman would be considered an officer de facto. “An officer de facto is one who exercises the powers and discharges the functions of an office, being then in possession of the same under color of authority, but without actual right thereto.” Oliver v. State, 362 So. 3d 1110, 1113 (Miss. Ct. App. 2019) (quoting Upchurch v. City of Oxford, 17 So. 2d 204, 204 (Miss. 1944)). Pursuant to Section 25-1-37, “the official acts of de facto officers are valid and binding.” MS AG Op., Davis at *2 (Jan. 31, 2011). Specifically, Section 25-1-37 provides: The official acts of any person in possession of a public office and exercising the functions thereof shall be valid and binding as official acts in regard to all persons interested or affected thereby, whether such person be lawfully entitled to hold the office or not and whether such person be lawfully qualified or not; but such person shall be liable to all the penalties imposed by law for usurping or unlawfully holding office, or for exercising the functions thereof without lawful right or without being qualified according to law. The status of the subject alderman requires a factual determination that cannot be made by this office. See Miss. Code Ann. § 7-5-25. This said, even if it is determined that the subject alderman has been acting as a de facto officer, there is no effect on the laws and ordinances he or she voted on. If this office may be of any further assistance to you, please do not hesitate to contact us. Sincerely, LYNN FITCH, ATTORNEY GENERAL By: /s/ Maggie Kate Bobo Maggie Kate Bobo Special Assistant Attorney General