Can a Mississippi special-charter city's board of mayor and selectmen remove school board trustees mid-term or change school board term lengths by ordinance?

Plain-English summary

McComb is one of a small number of Mississippi cities governed by a special charter rather than under the general state-law framework. McComb's school district has a five-member board of trustees: four are appointed by the McComb City Board of Mayor and Selectman; one is elected from the added territory of the school district.

Selectman Brock asked: can the City Board remove all four appointed school board members and start fresh? And can the City Board pass an ordinance to set school trustee terms or how trustees serve?

The AG said no to both, with a key qualification: the answers assume McComb's special charter is silent on these matters. If the charter actually addresses school board removal or terms, the charter language would control.

Setting that aside, the AG applied the general framework:

1. No mid-term removal. Mississippi school board trustees serve five-year terms under Section 37-7-203. The AG has long held that an individual lawfully appointed to office is entitled to serve the full term unless they cease to qualify (citing Rhodes 2020 and Cardin 2005). Mid-term removal is not allowed without a specific statutory removal procedure. Special-charter authority does not include the power to override Section 37-7-203's term protection.

2. No ordinance conflicting with state law. Special-charter municipalities can adopt ordinances on municipal affairs, property, and finances that are not addressed by general law and not inconsistent with the constitution, the Mississippi Code, the special charter, or other state law (citing Section 21-17-5). An ordinance changing school board trustee terms or removal procedures would conflict with Section 37-7-203 and would be invalid.

The opinion is short and direct. The legal point: special-charter status gives a city flexibility on local affairs, not a general license to override state law on school district governance.

What this means for you

For Mississippi special-charter municipalities

The opinion restates the framework it drew from prior AG opinions: a special-charter city's powers flow from its charter, the charter's specific provisions govern where they speak (and where they conflict with general law on local matters), and general statutory provisions apply where the charter is silent (Carouthers; Barton). The opinion answers Brock's questions on the express assumption that McComb's charter is silent on them. On that assumption, Section 21-17-5 lets the city adopt ordinances on municipal affairs, property, and finances only where they are not inconsistent with the constitution, the Mississippi Code, the charter, or other state law.

For school board trustees in special-charter cities

The opinion holds that a trustee of a municipal separate school district serves the five-year term set by Section 37-7-203, and the AG's prior position is that "an individual lawfully appointed to an office is entitled to serve the entire term of said office without being subject to removal, as long as he or she remains qualified to hold office" (Rhodes; Cardin). On the assumption the charter is silent, the City Board has no authority to remove a trustee during that term.

For McComb's specific situation

The opinion answers the two questions Brock asked. First, the City Board has no authority to remove a School Board member during the term for which the member was appointed. Second, Section 37-7-203 governs trustee terms, and the City Board has no authority to adopt an ordinance that conflicts with state statutes. Both answers are expressly premised on the McComb charter being silent on these matters; the opinion notes that if the charter speaks to them, the charter's provisions would control.

Common questions

Q: What is a "special charter" municipality?
A: A city whose governance structure is set by a specific legislative act (the charter) rather than under the general municipal law. Mississippi has a small number of special-charter cities, mostly older communities. The charter sets the city's governance framework, often including unusual structures (board of mayor and selectmen rather than aldermen, specific powers, specific limits).

Q: What does Section 21-17-5 mean for the City Board here?
A: As the opinion applies it (through the Jones opinion), special-charter municipalities can adopt ordinances on municipal affairs, property, and finances only where no provision has been made by general or special charter and the ordinance is not inconsistent with the constitution, the Mississippi Code, the charter, or other state law. Because Section 37-7-203 already governs trustee terms, an ordinance conflicting with it falls outside that authority.

Q: Why can't the City Board remove a trustee mid-term?
A: The opinion relies on the AG's settled position that a person lawfully appointed to an office serves the full term so long as they remain qualified (Rhodes; Cardin). It does not catalog any for-cause removal procedure; the opinion was answering whether the City Board could remove trustees, not how a removal-for-cause process would work.

Q: What if the charter actually does authorize the City Board to remove school trustees?
A: The opinion is expressly premised on the charter being silent. As it notes, where a special charter's provisions conflict with general law, the charter's specific provisions generally govern, so a charter that speaks to removal would change the analysis. Reviewing the actual charter text would be the next step.

Background and statutory framework

Mississippi's municipal law has two parallel structures:

General law municipalities: Most Mississippi cities operate under the general municipal law, with mayors and aldermen, code charters, and standard authority granted in Title 21 of the Mississippi Code.

Special charter municipalities: A small number of cities operate under specific legislative charters. McComb is one. These charters often predate the general municipal law and have unique features.

Section 21-17-5 sets the rule on ordinance authority. Special-charter municipalities (and general law municipalities) can pass ordinances on local matters within these limits:
- Not inconsistent with the Mississippi Constitution
- Not inconsistent with the Mississippi Code
- Not inconsistent with the city's special charter (where applicable)
- Not inconsistent with any other state statute or law

For school district matters, the controlling state law is Title 37 (education). Section 37-7-203 sets terms for municipal separate school district trustees at five years. Once seated, trustees enjoy the protection long established in Mississippi: "an individual lawfully appointed to an office is entitled to serve the entire term of said office without being subject to removal, as long as he or she remains qualified to hold office" (Rhodes 2020, citing Cardin 2005).

The interaction with special charters is hierarchical:
1. Mississippi Constitution (top)
2. Statutes (middle, including Title 37)
3. Special charter (specific to charter cities, governs local matters within the legislative authority granted)
4. General municipal law (default for general-law cities)
5. Local ordinances (lowest, must comply with all above)

Special-charter cities can do things general-law cities cannot, where the charter authorizes. They cannot do things state law forbids. They cannot pass ordinances overriding state law.

The Carouthers (2019) and Barton (2012) opinions cited established the AG's general approach to special-charter questions: read the charter for specifics, apply general law where the charter is silent, give effect to the charter's specific provisions where they conflict with general law on local matters.

Citations and references

Statutes:
- Miss. Code Ann. § 21-17-5, municipal ordinance-making authority
- Miss. Code Ann. § 37-7-203, school board trustee terms

Prior AG opinions:
- MS AG Op., Carouthers (June 28, 2019), special charter governs where it speaks; general law where charter is silent
- MS AG Op., Barton (June 15, 2012), special charter provisions govern over conflicting general law on local matters
- MS AG Op., Rhodes (Jan. 8, 2020), appointee entitled to full term without removal
- MS AG Op., Cardin (Aug. 26, 2005), same
- MS AG Op., Jones (July 27, 2012), special charter cities can adopt ordinances on local matters not inconsistent with state law

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/09/R.Brock-September-3-2021-Authority-of-the-McComb-Citys-Board-of-Mayor-and-Selectman-Over-the-School-Districts-Board-of-Trustees.pdf

Original opinion text

September 3, 2021

The Honorable Ronnie Brock
Selectman, City of McComb
Post Office Box 667
McComb, Mississippi 39649-0667

Re: Authority of the McComb City's Board of Mayor and Selectman Over the School District's Board of Trustees

Dear Mr. Brock:

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

Background

The City of McComb is governed by a special charter. According to your request, the Board of Trustees for the McComb Municipal Separate School District ("School Board") has five members, four of whom are appointed by the McComb City Board of Mayor and Selectman ("City Board") and one of whom is elected from the added territory of the school district.

Questions Presented

1. What authority, if any, does the City Board have to remove one or all four School Board members and appoint new School Board member(s)?
2. Can the City Board create an ordinance to address School Board trustees' term of service and how the School Board trustees serve?

Preface

The City of McComb is a special charter municipality, and as such, the powers of the municipality flow directly from its charter. Ordinarily, questions about the workings of a municipality operating under a special charter should be answered by reference to the specific provisions of that charter; however, if the special charter is silent on a particular matter, general statutory provisions would apply. MS AG Op., Carouthers at 1 (June 28, 2019). Where the provisions of a special charter conflict with general law, generally, the specific provisions of a special charter govern. MS AG Op., Barton at 1 (June 15, 2012). This opinion is premised on the special charter of the City of McComb being silent on your questions; so, this office will apply general statutory provisions.

Brief Response

1. Assuming the City of McComb's special charter is silent on this matter, as set forth above, the City Board has no authority to remove a School Board member during the term for which the member was appointed.

2. Assuming the City of McComb's special charter is silent on this matter, as set forth above, Section 37-7-203 governs the terms of service of school board trustees. The City Board has no authority to adopt an ordinance that conflicts with state statutes.

Applicable Law and Discussion

With respect to your first question, members of the boards of trustees of municipal separate school districts serve five-year terms. Miss. Code Ann. § 37-7-203. We have previously stated that an individual lawfully appointed to an office is entitled to serve the entire term of said office without being subject to removal, as long as he or she remains qualified to hold office. MS AG Op., Rhodes at *2 (Jan. 8, 2020) (citing MS AG Op., Cardin (Aug. 26, 2005)).

With respect to your second question, we have previously stated that special charter municipalities can adopt any orders, resolutions or ordinances with respect to municipal affairs, property, and finances for which no provision has been made by general or special charter provisions and which is not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code, the special charter of the municipality, or any other statute or law of the State of Mississippi. MS AG Op., Jones at *2 (July 27, 2012) (citing Miss. Code Ann. § 21-17-5). As such, the City Board has no authority to adopt any ordinance that conflicts with state statutes.

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/ Abby Cummings
Abby Cummings
Special Assistant Attorney General