In a Mississippi code-charter city, can the mayor issue an ordinance, and can the board of aldermen override one if he does?
Plain-English summary
Alderman Bennett of Long Beach asked two questions about the division of legislative authority in a code-charter municipality:
- Does the Board of Aldermen have exclusive authority to issue ordinances?
- If not, can the Board override an ordinance issued by the mayor?
The AG's answers track the constitutional separation of powers and the specific statutory framework for code-charter cities.
On exclusive authority: Yes, with a narrow exception. Section 21-3-15 vests the legislative power of a code-charter municipality in the Board of Aldermen. The mayor exercises executive power: presiding at meetings, casting a tie-breaking vote, supervising officers and affairs, executing the laws and ordinances adopted by the board. Section 21-3-15(3) defines "ordinance" to include "ordinances, resolutions and orders," so the entire legislative output is the board's exclusive domain.
The mayor has a veto on ordinances. Within ten days of receiving an ordinance, the mayor can sign it or return it to the board with written objections. If returned, the board can override with a two-thirds vote of all members on or after the third day following return. If the mayor neither signs nor returns within fifteen days, the ordinance takes effect.
The narrow exception is civil-emergency orders. Under Section 45-17-1 et seq., a mayor can proclaim a civil emergency and issue "orders as are necessary for the protection of life and property" (Section 45-17-7(e)). This is a delegated emergency power; outside an emergency, the mayor has no ordinance-issuing power.
On board override: A mayor's attempt to issue a regular ordinance would be invalid as a separation-of-powers violation. The board does not need to "override" because the action is invalid from the start. For civil-emergency orders, Section 45-17-1 et seq. does not provide an override procedure; the mayor's emergency-order authority operates within its statutory framework.
The opinion cites Article I, Sections 1 and 2 of the Mississippi Constitution (separation of powers) and the 2006 White opinion (a mayor of a mayor-council municipality lacked authority to regulate certain activities by executive order). It also cites Suggs v. Town of Caledonia, 470 So. 2d 1055 (Miss. 1985), for the principle that "the unauthorized acts of one of its officials does not estop a municipality from acting in its governmental capacity."
The AG declined to opine on whether any specific past action by the Long Beach mayor was an invalid ordinance; that is a factual question for the city.
What this means for you
For Mississippi code-charter city attorneys
When a question arises about who can issue what, refer to Section 21-3-15:
- Mayor: presides, casts tie-breaking votes (when needed), supervises city officers, executes ordinances, has veto power
- Board of Aldermen: legislative power; adopts ordinances, resolutions, and orders by vote at meetings
If the mayor purports to issue an ordinance directly (not as a tie-breaker, not under emergency authority), the action is invalid. The remedy is to point this out at the next board meeting and have the board, if desired, formally adopt the substance through proper legislative process.
For civil-emergency orders, review Section 45-17-1 et seq. The mayor's authority is real but bounded: the order must address protection of life and property and be tied to a properly proclaimed civil emergency.
For mayors of Mississippi code-charter cities
Your role is executive, not legislative. You can:
- Veto ordinances (with written objections within ten days)
- Sign ordinances into effect
- Cast tie-breaking votes when the board is split
- Implement and enforce adopted ordinances
- Issue emergency orders during a properly proclaimed civil emergency
You cannot:
- Issue ordinances directly outside emergency authority
- Bypass the board on legislative matters
- Use executive orders for ongoing regulatory action that should go through the board
If you want a policy adopted, propose it to the board. The board votes; if the board adopts, you sign or veto. If you veto, the board can override with a two-thirds vote. That is the legitimate channel.
For boards of aldermen in code-charter cities
Your legislative authority is exclusive. Routine business should flow through the board's regular meeting agenda, with proper notice and voting.
If a mayor purports to issue an ordinance directly, the proper response:
- Confirm with the city attorney that the mayor's action is invalid as an ordinance
- Adopt a board resolution clarifying the city's actual position
- If you agree with the substance of the mayor's action, adopt the same content through a proper ordinance
- If you disagree, adopt a board resolution explicitly disclaiming the mayor's action
Recusal of the mayor from the board's vote is not relevant; the issue is the constitutional allocation of authority, not voting mechanics.
For city clerks
Maintain the distinction in the official records:
- Ordinances: adopted by the board, presented to mayor for signature/veto, recorded with adoption and effective dates
- Resolutions and orders: same legislative process
- Mayor's emergency proclamations and orders: separately recorded under the emergency-statute authority
If a "mayoral ordinance" appears, flag it with the city attorney before recording it as an ordinance. The form of the document matters less than the underlying authority.
For residents disputing a local law
If a city is enforcing what appears to be a mayor-issued ordinance against you, look at how it was adopted. If the ordinance went through the board and was signed (or veto-overridden), it is presumptively valid. If the document was issued by the mayor unilaterally, it may be invalid as an ordinance and unenforceable.
A challenge could be raised in court (declaratory judgment, defense to enforcement action). Consult an attorney for case-specific analysis.
For emergency management officials
The mayor's civil-emergency authority is a real power. During a properly proclaimed civil emergency, the mayor can issue orders binding on residents to the extent the orders are necessary for the protection of life and property.
After the emergency ends, the mayor's emergency-order authority ends. Continuing regulation needs to come from the board through ordinary ordinance.
Common questions
Q: What is a "code-charter municipality"?
A: A Mississippi city operating under the general code provisions in Title 21 (rather than a special charter granted by the legislature). Most Mississippi cities are code charter; a few have special charters with their own governance rules.
Q: What if the city has a special charter?
A: Special-charter cities follow their charter's allocation of authority, which may differ from Section 21-3-15. The 2006 White opinion (mayor-council municipality) is in a different category. Check the specific charter.
Q: Does the same rule apply to commission-form municipalities?
A: Mississippi has a few commission-form cities, where the legislative and executive functions are blended in a different way. The Section 21-3-15 framework is for code-charter mayor-board cities specifically.
Q: What is a "civil emergency" under Section 45-17-1?
A: An emergency declared by the local civil-defense authority for events that threaten public safety. Examples include severe weather, infrastructure failures, public-health crises, and similar acute threats. The proclamation has to be properly made (per the statute) for emergency-order authority to attach.
Q: How long can civil-emergency orders last?
A: Section 45-17-1 et seq. has time limits and renewal procedures. The orders are emergency-bounded and cannot become a permanent regulatory tool.
Q: Can the board pass a resolution opposing a mayoral emergency order?
A: The board can pass a resolution stating its position, but Section 45-17-1 et seq. does not provide a procedure for the board to override the mayor's emergency authority during the emergency. The Long Beach AG opinion is explicit on this.
Q: What if the board and mayor agree the mayor will issue the ordinance?
A: Mutual agreement does not change the constitutional allocation. The board cannot delegate its legislative authority to the mayor. The proper path is for the board to adopt the ordinance.
Q: Does the veto rule apply to all ordinances, including budget ordinances?
A: Yes, generally. Section 21-3-15 covers all ordinances passed by the board. Specific statutes governing budget process may have additional provisions; check those.
Q: What if the mayor refuses to sign a properly adopted ordinance?
A: The mayor can veto by returning with written objections within ten days. If the mayor neither signs nor returns within fifteen days, the ordinance takes effect without the mayor's signature.
Q: Are mayor's executive orders ever permissible outside emergency context?
A: Mayors can issue administrative directives within the executive function (e.g., directing department operations, setting personnel policies within board-set parameters). These are not "ordinances" in the legislative sense. The line between administrative directive and legislative act can be debatable; the test is whether the directive purports to bind residents or change the law.
Background and statutory framework
Mississippi cities operate under one of three general structures:
- Code charter (most cities): Title 21 framework, with mayor-board governance under Section 21-3-15
- Special charter (a few cities like Columbus and Vicksburg): a charter granted by the legislature, often with unique governance rules
- Mayor-council (some larger cities): more separation between executive and legislative functions, often with stronger mayoral authority
The 2021 Bennett opinion is specifically about code-charter cities. Long Beach is a code-charter city.
Section 21-3-15 was substantially restructured in recent decades to clarify the mayor-board relationship. The current statute is explicit:
- Subsection (1): Mayor presides, casts tie-breaker, exercises executive power, supervises officers
- Subsection (2)(a): Board exercises legislative power by vote at meetings
- Subsection (2)(b): Veto and override procedures
- Subsection (3): "Ordinance" includes ordinances, resolutions, and orders
The civil-emergency exception is narrow. Section 45-17-1 et seq. is Mississippi's emergency-management statute. Section 45-17-7(e) authorizes mayoral emergency orders. The authority is real but bounded.
The 2006 White opinion is a useful comparison. It involved a mayor-council city, where the mayor's authority is somewhat broader than in a code-charter city. Even there, the AG found the mayor lacked authority to regulate certain activities by executive order. The principle is broader than code-charter alone: mayors generally do not have ordinance-issuing power, with narrow statutory exceptions.
The Suggs v. Town of Caledonia citation is interesting. The case held that "the unauthorized acts of one of its officials does not estop a municipality from acting in its governmental capacity." That means a city is not bound by a mayor's invalid ordinance and can act through the board to address the same matter. Practically, if a mayor issued an unauthorized "ordinance," the city can disregard it and adopt a proper ordinance through the board.
Citations and references
Statutes:
- Miss. Code Ann. § 21-3-15, mayor-board governance in code-charter municipalities
- Miss. Code Ann. § 21-13-1 et seq., procedure for passing ordinances
- Miss. Code Ann. § 45-17-1 et seq., civil emergencies; mayor's emergency authority
- Miss. Code Ann. § 45-17-7(e), mayoral emergency orders during proclaimed civil emergency
Mississippi Constitution:
- Miss. Const. art. 1, § 1 (separation of powers)
- Miss. Const. art. 1, § 2 (no person in one branch shall exercise power of another)
Case:
- Suggs v. Town of Caledonia, 470 So. 2d 1055 (Miss. 1985), unauthorized acts of officials do not estop municipality
Prior AG opinions cited:
- MS AG Op., Magee (Aug. 29, 2008), AG opinions cannot validate or invalidate past actions
- MS AG Op., Thomas (July 31, 2020), board of aldermen as legislative branch
- MS AG Op., White (June 2, 2006), mayor of mayor-council city lacked authority to regulate by executive order
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/12/P.Bennett-November-18-2021-Ordinances-in-a-Code-Charter-Municipality.pdf
Original opinion text
November 18, 2021
The Honorable Patrick Bennett
Alderman, City of Long Beach
126 Jeff Davis Avenue
Long Beach, Mississippi 39560
Re: Ordinances in a Code Charter Municipality
Dear Mr. Bennett:
The Office of the Attorney General has received your request for an official opinion.
Questions Presented
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Does the Board of Aldermen (the "Board") of the City of Long Beach, a code charter municipality, have the exclusive authority to issue city ordinances?
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If not, can the Board override an ordinance issued by the Mayor?
Brief Response
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The Board has exclusive authority under Mississippi Code Annotated Section 21-3-15, applicable to code charter municipalities, to adopt ordinances, which, by definition, include resolutions and orders. However, in very limited circumstances, such as a civil emergency proclaimed pursuant to Section 45-17-1, et seq., the mayor has authority to issue orders.
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An attempt by a mayor to issue an ordinance under Section 21-3-15 would be invalid. If a mayor issues an order during a civil emergency proclaimed pursuant to Section 45-17-1, et seq., the statute does not provide a procedure for a board of aldermen to override such an order.
Applicable Law and Discussion
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. MS AG Op., Magee at *1 (Aug. 29, 2008). Therefore, this opinion is for future guidance only and does not address any action already taken.
Article I, Section 1 of the Mississippi Constitution of 1890 sets forth the three branches of government:
The powers of the government of the State of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.
Article I, Section 2 provides that "[n]o person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others."
Section 21-3-15, which outlines the duties and powers of a mayor and board of aldermen in a code charter municipality, provides:
(1) The mayor shall preside at all meetings of the board of aldermen, and in case there shall be an equal division, shall give the deciding vote. The executive power of the municipality shall be exercised by the mayor, and the mayor shall have the superintending control of all the officers and affairs of the municipality, and shall take care that the laws and ordinances are executed.
(2)(a) The legislative power of the municipality shall be exercised by the board of aldermen by a vote within a legally called meeting. No member of the board of aldermen shall give orders to any employee or subordinate of a municipality other than the alderman's personal staff.
(b) Ordinances adopted by the board of aldermen shall be submitted to the mayor. The mayor shall, within ten (10) days after receiving any ordinance, either approve the ordinance by affixing his signature thereto, or return it to the board of aldermen by delivering it to the municipal clerk together with a written statement setting forth his objections thereto or to any item or part thereof. No ordinance or any item or part thereof shall take effect without the mayor's approval, unless the mayor fails to return an ordinance to the board of aldermen prior to the next meeting of the board, but no later than fifteen (15) days after it has been presented to him, or unless the board of aldermen, upon reconsideration thereof on or after the third day following its return by the mayor, shall, by a vote of two-thirds (2/3) of the members of the board, resolve to override the mayor's veto.
(3) The term "ordinance" as used in this section shall be deemed to include ordinances, resolutions and orders.
Accordingly, the Board, as the legislative branch of municipal government is charged with passing ordinances, orders, and resolutions that govern the operation of municipal government. MS AG Op., Thomas at *2 (July 31, 2020). Section 21-13-1, et seq. governs the procedure for passing such ordinances. The mayor exercises executive powers and is required by law to enforce such ordinances, resolutions, and orders of the board of aldermen. Id.
Generally speaking, given the allocation of authority outlined above, any attempt by a mayor to issue an ordinance would be a violation of the separation of powers doctrine. See MS AG Op., White at *1 (June 2, 2006) (finding mayor of mayor-council municipality lacked authority to regulate certain activities by executive order).
In very limited circumstances, a mayor has statutory authority to issue orders. Notably, for example, in Section 45-17-1, et seq., the mayor is granted authority to proclaim a civil emergency and issue "orders as are necessary for the protection of life and property." Miss. Code Ann. § 45-17-7(e). This statutory scheme does not expressly provide for an override by the board of aldermen.
Although we do not opine on whether the mayor has in fact issued an invalid or unlawful ordinance, we note that the Mississippi Supreme Court has held that "the unauthorized acts of one of its officials does not estop a municipality from acting in its governmental capacity." Suggs v. Town of Caledonia, 470 So. 2d 1055, 1057 (Miss. 1985).
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