C.Rhodes_January 8, 2020 – Term and removal of school trustees

STATE OF MISSISSIPPI [LOGO] JIM HOOD ATTORNEY GENERAL OPINIONS DIVISION January 8, 2020 Carroll Rhodes, Esquire Attorney for Hazlehurst City School District Post Office Box 588 Hazlehurst, Mississippi 39083 Re: Term and removal of school trustees Dear Mr. Rhodes: OFFICIAL OPINION Attorney General Jim Hood received your letter of request and assigned it to me for research and reply. ### Background You state that the Hazlehurst City School District is a municipal separate school district with added territory governed by a five-member Board of Trustees as provided in Section 37-7-203 of the Mississippi Code. The added territory furnishes more than 30% of the pupils enrolled in the schools of the district which means that two trustees are elected from the added territory and three members are appointed by the Mayor and Board of Aldermen of the City of Hazlehurst in accordance with Section 37-7-203(1). The initial appointment and election of trustees establishes staggered terms. Upon the expiration of the initial staggered terms, trustees are appointed or elected to five-year terms. On October 24, 2008, the Mississippi State Board of Education, pursuant to Section 37-17-13, approved a resolution requesting the Governor to declare a state of emergency and abolish the School District. Governor Haley Barbour complied with that resolution. On July 19, 2013, the State Board of Education approved a resolution acknowledging 550 HIGH STREET - POST OFFICE BOX 220 - JACKSON, MISSISSIPPI 39205-0220 TELEPHONE (601) 359-3680 - FACSIMILE (601) 359-5025 Carroll Rhodes, Esquire January 8, 2020 Page 2 that the impairments of the School District had been substantially corrected and requested the Governor to dissolve and lift the emergency declaration issued in 2008. On July 25, 2013, Governor Phil Bryant issued a proclamation declaring that the state of emergency no longer existed restoring local control of the School District. At the December 2013 board meeting of the Mayor and Board of Aldermen, the governing authorities appointed trustees to staggered terms, including the two trustees from the added territory, to serve until the next election for the added territory in accordance with Section 37-17-6(11)(d). The appointments included a trustee, whose term expired in December 2015. On December 8, 2015, the governing authorities appointed a new trustee to a five-year term. On December 3, 2019, the governing authorities appointed an individual to replace the appointee who was appointed to a five-year term in December 2015. The term of the individual appointed in December 2015 does not end until December 2020. Based on the facts presented in your letter, the position in question is an appointed position and not an elected position from the added territory. ## Questions Presented and Responses Question 1: Whether a Mayor and Board of Aldermen for a municipality can lawfully replace an appointed member of a municipal separate school district Board of Trustees who has not resigned nor been removed pursuant to specific statutory authority during the appointed member's five (5) year term? Response: Pursuant to Section 7-5-25, opinions of the Attorney General are issued on questions of law for the future guidance of those officials entitled to receive them. An Attorney General's opinion can neither validate nor invalidate past action of municipal governing authorities. Therefore, we must decline to respond to this question with an official opinion. For your information, please see the enclosed opinion to Mr. Dudley Guice, dated January 3, 2012, which cites MS AG Op., Cardin (August 26, 2005) and states that once appointed to an office for a specific term, an appointee is entitled to serve the entire term without being subject to removal, as long as he remains qualified to hold office. Question 2: When a Mayor and Board of Aldermen of a municipality have appointed two persons at different times during the same five-year term for the same position on a municipal separate school district Board of Trustees, then which appointed member has the authority to take official action as a member of the Board of Trustees? 550 HIGH STREET - POST OFFICE BOX 220 - JACKSON, MISSISSIPPI 39205-0220 TELEPHONE (601) 359-3680 - FACSIMILE (601) 359-5025 Carroll Rhodes, Esquire January 8, 2020 Page 3 Response: As stated in Guice and Cardin, an individual lawfully appointed to an office is entitled to serve the entire term of said office. Therefore, the individual appointed to a five-year term on December 8, 2015 is the legitimate trustee until his term expires in December 2020. The attempted appointment of an individual to an office prior to the expiration of the term of the lawfully-appointed incumbent who has not resigned or become disqualified is of no legal effect. Question 3: Whether the school district is required to secure a bond for a person appointed to the same position of a municipal separate school district Board of Trustees that is already being filled by a person currently serving a five (5) year term who is bonded? Response: No. A school district has no authority to secure a bond for a person who is not lawfully occupying the office of trustee. Question 4: Whether a municipal separate school district is required to allow two members to fill the same position on a school board? Response: No. As stated in our response to Question 2, the attempted appointment of an individual to an office prior to the expiration of the term of the lawfully-appointed incumbent who has not resigned or become disqualified is of no legal effect. Question 5: Whether a municipal separate school district is required to allow six members to take official action for the school district? Response: No. There is no statutory authority for a municipal separate school district to have a six-member board of trustees. ### Applicable Law and Discussion Upon reconstitution of the school district, there will be vacant offices. MS AG Op., Barton (June 29, 2012). The municipal governing authorities appoint the new school board members, including the two elected positions pursuant to Section 37-7-203, which provides, in part: (1) Except as otherwise provided in subsections (3) and (4) of this section, the boards of trustees of all municipal separate school districts created under this chapter, either with or without added territory, shall consist of five (5) members, each to be chosen for a term of five (5) years, but so chosen that the term of office of one (1) member shall expire each year. In the event the added territory of a municipal separate school district furnishes fifteen percent (15%) or more of the pupils enrolled in the 550 HIGH STREET - POST OFFICE BOX 220 - JACKSON, MISSISSIPPI 39205-0220 TELEPHONE (601) 359-3680 - FACSIMILE (601) 359-5025 Carroll Rhodes, Esquire January 8, 2020 Page 4 schools of such district, then at least one (1) member of the board of trustees of such school district shall be a resident of the added territory outside the corporate limits. In the event the added territory of a municipal separate school district 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. *** (Emphasis added). Sincerely, JIM HOOD, ATTORNEY GENERAL By: Phil Carter Phil Carter Special Assistant Attorney General