Can a Mississippi elected county official withdraw a resignation before the board of supervisors meets to act on it?

Plain-English summary

Warren County's board attorney faced a real-life puzzle: an elected county official sent a written resignation letter saying it was effective immediately, then a few days later (still before the board's next meeting) sent a written withdrawal of that resignation. He asked whether the office was already vacant, whether the withdrawal was valid, and whether the board needed to accept either filing.

The AG declined to rule on the specific Warren County situation because § 7-5-25 limits AG opinions to prospective legal questions. But the office restated its long-held rules for future guidance:

• A resignation becomes effective on the date specified in it.
• A person can withdraw a resignation any time before that effective date.
• The board of supervisors does not need to accept either the resignation or the withdrawal for them to be effective.
• A county resignation does not need to be sent to the Governor to take effect (the Governor only commissions the replacement under § 23-15-839).

The AG declined to rule on the specific Warren County facts, where the resignation was effective the same day as the letter. Under the general rule (effective "on the date specified," withdrawable before that date), a resignation with a future effective date can be withdrawn before that date; a same-day resignation leaves little or no window, but the AG did not decide that specific question.

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.

What the opinion said for each audience, at the time

For Mississippi elected county officials thinking about resigning

Under the opinion, a resignation letter took effect on its stated effective date, and the official could withdraw it any time before that date passed. A resignation effective two weeks out left a two-week window to reconsider. The AG declined to decide the same-day case (resignation effective the date of the letter), where submission and effective date coincide.

For boards of supervisors processing resignations

The opinion confirmed that the board's acceptance was not required for either a resignation or a withdrawal of resignation to take effect. That meant a board could not strategically refuse to accept a withdrawal. If the official wrote a withdrawal before the effective date, the office was preserved regardless of what the board did.

For county attorneys handling vacancy procedures

When a vacancy did exist, the procedure for filling it was set by § 23-15-839. The Governor commissioned the replacement. There was no requirement that the resignation itself be sent to the Governor. The footnote in the opinion also noted that nothing prevented the appointing authority from reappointing the same person who had resigned, if a vacancy did open.

For citizens curious about how this works

In a state with regular turnover among local elected officials, the rule mattered for anyone considering resignation. A resignation was a written commitment to leave on a specific date. Before that date, you could change your mind. After that date, the office became vacant and would be filled by the procedures in § 23-15-839, even if you tried to revoke the resignation.

Common questions

Q: Can I take back a resignation after I send it?
A: Per the 2020 opinion, yes, if you do it before the resignation's stated effective date. Send a written withdrawal before that date and your office is preserved. The board does not need to accept the withdrawal for it to work.

Q: What if I said the resignation was "effective immediately"?
A: That was the harder case. The AG declined to rule on the specific Warren County situation where the resignation was effective the same day as the letter. Read together with the rule that a resignation becomes effective "on the date specified," a same-day resignation arguably becomes effective the moment it is delivered, leaving little or no window to withdraw.

Q: Does the board of supervisors have to accept my resignation?
A: No, per the opinion. The AG cited prior opinions establishing that municipal and county officer resignations take effect without governing-body acceptance. The same rule applied to withdrawals.

Q: Do I need to send my resignation to the Governor?
A: Not for the resignation to take effect. The Governor's role under § 23-15-839 is to commission the replacement, not to accept the resignation. You file the resignation with the board of supervisors (or however your local procedure specifies).

Q: If a vacancy is created, can the same person be re-appointed?
A: A footnote in the opinion noted that nothing in Mississippi law prohibits the appointing authority from appointing the resigned official to fill the vacancy. So even if a withdrawal was somehow ineffective, the official could potentially be reappointed if the appointing authority chose.

Q: Why did the AG refuse to rule on the actual Warren County situation?
A: Section 7-5-25 limits AG opinions to prospective legal questions and prohibits the office from validating or invalidating past actions. The Warren County resignation had already happened, so the AG could only state the rule for future guidance, not opine on whether the specific official remained in office.

Background and statutory framework

The AG's rule on resignation withdrawal comes from its own prior opinions: a resignation becomes effective on the date specified in it, and the official may withdraw it up until that stated effective date.

The AG developed this rule in MS AG Op., Jones (Nov. 7, 2003) and applied it to a county board appointee in MS AG Op., Hudson (Jan. 21, 2005). The 2020 opinion reaffirmed that:

1. Effective date in the letter controls.
2. No acceptance is required.
3. Withdrawal works any time before the effective date.

When a vacancy does occur, § 23-15-839 sets the procedure for filling vacancies in county or county district offices through gubernatorial commission. That section operates independently of how or when the vacancy was created.

Citations and references

Statutes:

• Miss. Code Ann. § 7-5-25, AG opinions limited to prospective legal questions
• Miss. Code Ann. § 23-15-839, procedures for filling vacancies in county or county district offices, Governor's commission of replacements

Prior AG opinions cited:

• MS AG Op., Jones (Nov. 7, 2003), resignation effective on date specified, may be withdrawn before effective date
• MS AG Op., Hudson (Jan. 21, 2005), resignation of public board appointee, no acceptance required
• MS AG Op., Gaylor (Jan. 11, 2013), § 23-15-839 procedure for filling county-office vacancies

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/12/B.Teller_December-14-2020-Withdrawal-of-resignation-of-public-office.pdf

Original opinion text

December 14, 2020

B. Blake Teller, Esq.
Attorney, Warren County Board of Supervisors
1201 Cherry Street
Vicksburg, Mississippi 39183-2919

Re: Withdrawal of resignation of public office

Dear Mr. Teller:

The Office of the Attorney General has received your request for an official opinion.

Questions Presented

In your request, you provide:

In the event an elected County public official submits a written request to the Board of Supervisors asking the Board to accept his or her resignation, effective the same date as the letter, which effective date is before the next date on which the board meets; then submits a written withdrawal of the request to accept resignation a few days later but prior to the next meeting date of the Board during which the Board would presumably have taken up the proposed written resignation, (1) What is the status of the elected county public official?; (2) Is the office of such duly elected official deemed vacant, or can such duly elected official withdraw the request for acceptance of resignation even though the effective date of resignation was proposed to be the same date as the letter, being at a time before the board could possibly meet to take up the matter for consideration; (3) If the board desires, may the board opt to accept the withdrawal of resignation; and (4) Does it matter whether the written request of an elected county public official seeking acceptance of resignation is submitted to the Board of Supervisors and not the Governor?

Applicable Law and Discussion

Opinions of this office are limited to prospective legal questions. Miss. Code Ann. § 7-5-25. We do not make factual determinations, nor do we validate or invalidate past action. Id. With respect to your first and second questions, to the extent they ask us to determine whether the referenced county public official resigned from office or whether the office is vacant, we must decline to do so. We offer the following comments for future guidance.

Our office has previously held that a resignation becomes effective upon the date specified in the resignation and that one may withdraw his resignation up until the stated effective date. MS AG Op., Jones at *1 (Nov. 7, 2003). This remains the opinion of this office.

With respect to your third question, we have previously opined that a municipal officer's resignation does not need to be accepted by members of the governing authorities to become effective. Id. We have applied this principle to a resignation submitted to a county board of supervisors. MS AG Op., Hudson at *1 (Jan. 21, 2005) (relating to resignation of a public board appointee). Under the facts presented in your request, this office is of the opinion that the validity of the county official's withdrawal of his or her resignation is unaffected by the board of supervisors' acceptance of such withdrawal.

Turning to your final question, we are aware of no requirement that a resignation of a county office be submitted to the Governor. Pursuant to Section 23-15-839, the Governor commissions the person who fills a vacancy in any county or county district office. However, this has no bearing on whether the resignation of the original county public official is effective. If an elected county officer did in fact resign his or her position, it should be filled in accordance with Section 23-15-839, which sets forth the procedures for filling vacancies in county or county district offices.[1] MS AG Op., Gaylor, at *1 (Jan. 11, 2013).

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/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General

[1] We know of nothing that would prohibit the appointing authorities from appointing the resigned official to fill the existing vacancy. MS AG Op., Hudson at *1 (Jan. 21, 2005).