How does a Mississippi special-charter city change to code-charter form of government?

Plain-English summary

Okolona has a Special Charter dating from before Mississippi's general municipal code. The charter has outdated and inapplicable provisions. The newly elected city council wants to convert to a Code Charter form of government. Two questions:

Question 1: Voter petition required, or just Council resolution to call the election?

The AG: Council resolution suffices. Section 21-3-1 requires majority vote of electors at a general or special election to adopt a Code Charter. But the statute doesn't specify how to initiate the election. Section 23-15-859 (Municipal Special Elections) fills the gap: when a statute authorizes a special election but doesn't specify how to call it, the governing authorities adopt a resolution fixing the date and providing notice.

So: Council adopts resolution → resolution provides for special election → election is held → voters decide.

Caveat: if Okolona's Special Charter has its own provisions for calling such elections, those control. If silent, Section 23-15-859 applies.

Question 2: When does the change take effect, and how does the transition from 6 council members to 5 aldermen happen?

If voters approve, the city becomes a Code Charter city. But:

1. Current officials serve out their terms (the 1989 Noble opinion: an elected official is authorized to serve the remainder of the term despite changes)
2. At the next scheduled municipal election cycle, the city elects a mayor and 5 aldermen
3. Section 21-3-7 caps council size: 5 aldermen for municipalities under 10,000 population
4. The Council must apportion wards before the next election (Sections 23-15-171 primaries and 23-15-173 generals)
5. Code Charter election cycle: general election first Tuesday after first Monday in June every four years; primaries first Tuesday in April preceding general
6. Next code charter election cycle: 2025 (per Mississippi Secretary of State)

If voters reject: no second vote on the question for four years (Section 21-3-1).

The opinion cites the 2010 Yarborough opinion for Section 21-3-1's adoption procedure, and the 1985 Meadows and 2021 Brock opinions for the rule that a special charter's provisions control when they are not silent, while general statutes apply where the charter is silent.

What this means for you

For municipal attorneys and city councils in special-charter cities

Under the opinion, the Council does not need a voter petition to start the process. The governing authorities may adopt a resolution providing for a special election on the question of changing to a Code Charter, "unless the City's Special Charter includes specific provisions calling for such an election, in which case the Special Charter would take precedence over Section 23-15-859." The election itself is governed by Section 21-3-1: the ballot reads "FOR THE CODE CHARTER" and "AGAINST THE CODE CHARTER," a majority of votes cast decides it, and if the change is rejected, "another election submitting the question shall not be held within four years thereafter."

For city clerks and officials handling the transition

If the voters approve, the opinion says the current mayor and council members are still "entitled to serve the remainder of their terms" (citing the Noble opinion), so the six-member council is not displaced immediately. Before the next scheduled municipal elections under Sections 23-15-171 and 23-15-173, the governing authorities "will have to apportion wards for the election of five aldermen in accordance with Section 21-3-7," which sets five aldermen for municipalities under 10,000 population. The opinion states the next Code Charter election cycle is 2025. It does not address ward-drawing standards beyond the apportionment requirement, and it does not address whether or how a city could later convert back.

Common questions

Q: Does the change require a voter petition, or can the Council call the election itself?
A: The Council can call it. The opinion holds the governing authorities may adopt a resolution providing for a special election on the question, unless Okolona's Special Charter has its own conflicting provisions, in which case the charter controls.

Q: What is on the ballot and how is it decided?
A: Section 21-3-1 sets the propositions as "FOR THE CODE CHARTER" and "AGAINST THE CODE CHARTER." A majority of the legal votes cast decides the question.

Q: What happens if voters reject the Code Charter?
A: The opinion quotes Section 21-3-1: another election on the question "shall not be held within four years thereafter," and the city's corporate powers remain as provided by law in the meantime.

Q: If voters approve, do the current six council members lose their seats right away?
A: No. The opinion says the current mayor and council members are entitled to serve out their terms (citing the Noble opinion). The shift to five aldermen happens at the next scheduled municipal election, which the opinion identifies as the 2025 cycle.

Q: How is the special election called when Section 21-3-1 doesn't say?
A: Through Section 23-15-859, which the opinion says supplies the procedure when a statute authorizes a municipal special election but doesn't fix the timing or notice: the governing authorities fix a date 21 to 30 days out by resolution, with at least three weeks' published notice and notices posted in three public places, unless the Special Charter conflicts.

Background and statutory framework

Mississippi's municipal governance is layered:

Code Charter framework (Title 21, Chapter 3 et seq.):

• Standard municipal code with structured powers, election cycles, council size, etc.
• Section 21-3-1: voter approval required to adopt
• Section 21-3-7: 5 aldermen for cities under 10,000 population
• Section 23-15-171: primary elections (first Tuesday in April)
• Section 23-15-173: general elections (first Tuesday after first Monday in June every four years)

Special Charter framework:

• City-specific incorporation, often from the 1800s
• Custom provisions for governance, election, council size
• Special charter prevails when its provisions conflict with general statutes (1985 Meadows, 2021 Brock)
• Special charter can be silent; general statutes fill gaps

Special election framework (Section 23-15-859):

• When a statute authorizes a special election but doesn't specify procedures, this section provides:
  • Resolution fixing date 21-30 days out
  • Notice published 3 weeks in advance in newspaper
  • 3 posted notices in public places
• Special charter provisions override Section 23-15-859 only if they conflict

The 2010 Yarborough opinion explained Section 21-3-1's procedure for Code Charter adoption. The 1985 Meadows and 2021 Brock opinions clarify the special-charter-prevails rule with the silence-defaults-to-general-statute exception. The 1989 Noble opinion established that elected officials serve out their terms despite governmental restructuring. The 2001 Bryant opinion confirmed that municipalities must conduct elections as scheduled absent court order.

Citations and references

Statutes:

• Miss. Code Ann. § 21-3-1, Code Charter adoption procedure
• Miss. Code Ann. § 21-3-7, ward and aldermen requirements (5 for under 10,000)
• Miss. Code Ann. § 23-15-171, primary elections
• Miss. Code Ann. § 23-15-173, general elections
• Miss. Code Ann. § 23-15-859, municipal special elections

Prior AG opinions cited:

• MS AG Op., Meadows (Jan. 2, 1985), changing form requires charter authorization or general statute
• MS AG Op., Brock (Sept. 3, 2021), special charter silent → general statutes apply
• MS AG Op., Yarborough (Oct. 15, 2010), Section 21-3-1 procedure
• MS AG Op., Noble (Feb. 14, 1989), elected officials complete terms
• MS AG Op., Bryant (Jan. 23, 2001), elections per schedule

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/06/G.Barton-June-14-2022-Change-from-Special-Charter-to-Code-Charter.pdf

Original opinion text

June 14, 2022

Gene Barton, Esq.
Attorney for City of Okolona
102 N. Church Street
Okolona, Mississippi 38860

Re: Change from Special Charter to Code Charter

Dear Mr. Barton:

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

Background

According to your request, the City of Okolona (the "City") has a Special Charter and currently operates with a mayor and six council members. Okolona's Special Charter has many outdated and inapplicable provisions, and the newly elected city council (the "Council") is interested in changing to a Code Charter municipality.

Questions Presented

1. Section 21-3-1 of the Mississippi Code indicates that an election is required to change from a Special Charter form of government to a Code Charter form of government. Is a petition circulated by voters necessary, or may the Council simply make a resolution to initiate the election process?
2. If the City were to change to a Code Charter form of government, when would it take effect, and how would the City transition from a six member council to a five member board of aldermen?

Brief Response

1. The required election may be initiated by the governing authorities adopting a resolution that provides for a special election on the question of changing to a Code Charter form of government, unless the City's Special Charter includes specific provisions calling for such an election, in which case the Special Charter would take precedence over Section 23-15-859.
2. If the electors choose to change to a Code Charter form of government, before the next scheduled municipal elections as specified by Sections 23-15-171 and 23-15-173, the municipality will apportion wards for the election of five aldermen in accordance with Section 21-3-7.

Applicable Law and Discussion

"Absent a valid order from a court of competent jurisdiction, in order for a municipality operating under a private or special charter to change its [form] of government there must be authorization therefor in said charter or in the general laws of the State." MS AG Op., Meadows at 2 (Jan. 2, 1985). See MS AG Op., Brock at 1 (Sept. 3, 2021) (Opining that if a Special Charter is silent on an issue, then general statutory provisions apply.) As this office has stated previously, Section 21-3-1 sets forth the procedure for a municipality not currently operating under a Code Charter to adopt a Code Charter form of government. MS AG Op., Yarborough at *1 (Oct. 15, 2010). Section 21-3-1 states:

Any municipality not now operating under a "Code Charter" may acquire such charter and come under the provisions of this chapter by a majority vote of the electors therein, cast at a general or special election held for such purpose. At such election, the propositions to be voted on shall be "FOR THE CODE CHARTER" and "AGAINST THE CODE CHARTER." If a majority of the legal votes cast are in favor of adopting the code charter, then the municipality shall be subject to and governed by all the following provisions of this chapter, and the result of the election shall be certified to the secretary of state, who shall make a record of same in his office. If a majority of the votes cast shall be against the code charter, the municipal authorities shall so enter of record, and another election submitting the question shall not be held within four years thereafter. After the rejection of the provisions of the code charter by a municipality, and until its acceptance thereof as herein provided, the corporate powers, rights and franchises thereof shall be and remain as now provided by law.

As stated in Section 21-3-1, a majority of the qualified electors must vote at a special or general election held for the specific purpose of voting for the Code Charter form of government or against the Code Charter form of government.

While Section 21-3-1 does not specify how to initiate the election to determine whether the qualified electors of a municipality are in favor of a change in government, Section 23-15-859, entitled "Municipal special elections," sets forth the procedure to follow when a statute authorizes a municipal special election but fails to specify the time within which the election shall be called or the notice that shall be given. It is the opinion of this office that, unless Okolona's Special Charter sets out a process that conflicts with that in Section 23-15-859, the governing authorities of the City, following the mandates of Section 23-15-859, may adopt a resolution providing for a special election on the issue of changing to a Code Charter form of government. If the Special Charter sets out provisions in conflict with Section 23-15-859, the process as laid out in the charter shall be followed instead. Section 23-15-859 states, in pertinent part:

[T]he governing authorities of the municipality shall, by resolution, fix a date upon which the election shall be held. The date shall not be less than twenty-one (21) nor more than thirty (30) days after the date upon which such resolution is adopted, and not less than three (3) weeks' notice of the election shall be given by the clerk by a notice published in a newspaper published in the municipality once each week for three (3) weeks next preceding the date of the election, and by posting a copy of the notice at three (3) public places in the municipality. Nothing herein, however, shall be applicable to elections on the question of the issuance of the bonds of a municipality or to general or primary elections for the election of municipal officers.

The provisions of this section shall be applicable to all municipalities of this state, whether operating under a code charter, special charter or the commission form of government, except in cases of conflict between the provisions of the section and the provisions of the special charter of a municipality, or the law governing the commission form of government, in which cases of conflict the provisions of the special charter or the statutes relative to the commission form of government shall apply.

If a majority of the electors vote to change to a Code Charter form of government, then the results shall be certified to the Secretary of State who shall record such in his office. However, if the vote is against changing to a Code Charter form of government, then another election on the issue cannot be held for another four years. Miss. Code Ann. § 21-3-1.

While Section 21-3-1 states that if a majority of the electorate chooses a Code Charter form of government, "then the municipality shall be subject to and governed by all the following provisions of this [Code Charter] chapter," practically speaking, the current mayor and council members are entitled to serve the remainder of their terms. See MS AG Op., Noble at *1 (Feb. 14, 1989) ("[A]n elected official is authorized to serve the remainder of his term although the district lines have been legally altered . . . .") The governing authorities will have to apportion wards for the election of five aldermen in accordance with Section 21-3-7, which states that in municipalities having a total population of less than 10,000, there shall be five aldermen.

Sections 23-15-171 and 23-15-173 set forth the primary and general election cycles for Code Charter municipalities. A general election for all municipal officers elected by the people in a Code Charter municipality shall be held on the first Tuesday after the first Monday in June every four years. Miss. Code Ann. § 23-15-173. Primary elections shall be held on the first Tuesday in April preceding the general election. Miss. Code Ann. § 23-15-171. The next election cycle for Code Charter municipalities will be in 2025. MISSISSIPPI SECRETARY OF STATE, http:/www.sos.ms.gov (last visited May 17, 2022). "Municipalities are statutorily required to conduct elections as scheduled unless otherwise ordered by a court of competent jurisdiction." MS AG Op., Bryant at *1 (Jan. 23, 2001). Therefore, it is the opinion of this office that if the voters of Okolona choose to switch the form of government from a Special Charter to a Code Charter, then the new mayor and five aldermen will be elected in 2025 in accordance with the 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/ Misty Monroe
Misty Monroe
Special Assistant Attorney General