Can a Mississippi mayor and aldermen replace an appointed school board member before the appointee's five-year term ends?

Plain-English summary

Hazlehurst City School District's attorney brought a tangled fact pattern to the AG. The district, a municipal separate school district with added territory, had been put under a state-of-emergency declaration in 2008 and reconstituted in 2013. After reconstitution, the Mayor and Board of Aldermen appointed trustees to staggered terms. One trustee, appointed to a five-year term in December 2015, had not resigned; his term ran through December 2020. In December 2019, however, the governing authorities purported to appoint a different person to the same seat. Now the district had two people claiming the office.

The AG sided with the original 2015 appointee. The core rule, drawn from MS AG Op., Cardin (2005) and MS AG Op., Guice (2012), is 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." That meant: (1) the December 2015 appointee was the legitimate trustee through December 2020; (2) the attempted December 2019 appointment was "of no legal effect"; (3) the school district was not required to secure a bond for someone not lawfully holding office; (4) the district was not required to seat two members for the same position; and (5) there is no statutory authority for a six-member board.

The AG declined to give an "official opinion" on whether the 2019 attempted replacement was valid because, under § 7-5-25, AG opinions provide future guidance and cannot validate or invalidate past municipal action. But the AG attached a prior opinion that signaled how a court would likely come out.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Mississippi's framework for municipal separate school districts is in Miss. Code Ann. § 37-7-203. The default board is five members, each chosen for a five-year term, with one term expiring each year on a staggered schedule. When added territory furnishes 30% or more of the district's pupils, two of the five seats are reserved for residents of the added territory and elected; the other three are appointed by the municipal governing authority. The Hazlehurst district fit that 30%+ pattern.

The dispute traced back to a 2008 emergency declaration. Section 37-17-13 lets the State Board of Education request the Governor to declare a state of emergency and abolish a school district when severe deficiencies are present. Hazlehurst was abolished by Governor Barbour in 2008. In July 2013, the State Board determined the district's impairments had been substantially corrected and asked Governor Bryant to lift the emergency. Section 37-17-6(11)(d) governs how the new board is composed when a district is reconstituted: the municipal governing authority appoints all board members, including the seats normally reserved for added territory, until the next election. That is what Hazlehurst did in December 2013.

What followed is the standard rule the AG applied: once appointed to a defined term, an appointee is entitled to finish that term unless he resigns or becomes disqualified. The mayor and aldermen could not "ride the brakes" mid-term and substitute a different appointee. The 1903 case Board of Sup'rs of Choctaw Cty. v. Hughes, while not cited in the Rhodes opinion itself, is the foundational authority for the principle. The AG's modern application traces through MS AG Op., Cardin (August 26, 2005) and MS AG Op., Guice (January 3, 2012), the latter attached to this opinion as guidance.

The AG's refusal to issue a formal opinion validating or invalidating the December 2019 attempted appointment came from § 7-5-25, which limits AG opinions to forward-looking legal questions. The opinion's text effectively answers the question, but the AG framed it as guidance because the act in question had already occurred.

Common questions

Q: Why did the AG refuse to formally rule on whether the 2019 replacement was valid?
A: AG opinions under § 7-5-25 provide forward-looking legal guidance to officials. They cannot retroactively validate or invalidate past actions, since that is a judicial function. The AG sidestepped the formal answer but provided guidance through the attached Guice opinion making the legal answer obvious: the December 2019 attempted replacement had no legal effect.

Q: How would the school district have known which person to seat?
A: Based on the AG's analysis, the December 2015 appointee was the legitimate trustee. Anything the December 2019 appointee did at a board meeting was the action of a non-trustee. If the school district had seated the wrong person, board actions could be challenged as taken without a quorum or by a non-member.

Q: What if the original 2015 appointee had resigned or become disqualified?
A: Then the seat would be vacant and the mayor and aldermen would be authorized to appoint a successor for the unexpired portion of the term. The AG's rule applies only when the original appointee remains qualified and willing to serve.

Q: Could the mayor and aldermen have removed the trustee for cause?
A: The opinion does not address removal procedures. Mississippi law allows removal of public officials only through specific statutory or quo-warranto procedures. A mayor and aldermen could not unilaterally remove a school trustee by simply appointing a replacement; if removal was warranted, separate process would be required.

Q: Why no six-member board?
A: Because § 37-7-203 caps municipal-separate-school-district boards at five members. There is no statutory mechanism to add a sixth seat or to let two appointees share one seat.

Citations and references

Statutes:
- Miss. Code Ann. § 37-7-203 (Composition of municipal-separate-school-district boards)
- Miss. Code Ann. § 37-17-13 (State of emergency, abolition of school district)
- Miss. Code Ann. § 37-17-6(11)(d) (Reconstitution and reappointment after abolition)
- Miss. Code Ann. § 7-5-25 (Limits AG opinions to questions of state law for future guidance)

Prior AG opinions:
- MS AG Op., Cardin (August 26, 2005)
- MS AG Op., Guice (January 3, 2012, attached to opinion)
- MS AG Op., Barton (June 29, 2012)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/07/C.Rhodes_January-8-2020-Term-and-removal-of-school-trustees.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE OF MISSISSIPPI

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

OFFICIAL OPINION

Dear Mr. Rhodes:

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 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 has the authority to replace an appointed member of a municipal separate school district board of trustees who has not resigned and is not subject to removal 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?

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 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

Phil Carter
Special Assistant Attorney General