Does a town housing authority commissioner have to live inside the town, or can they live within five miles of the town?

Plain-English summary

The Town of Summit's attorney asked the AG whether the town can appoint people who live within five miles of the town (but outside the town limits) to its Housing Authority Board. The concern: § 43-33-1(g) defines "area of operation" of a "city housing authority" using the word "city," but Summit is a town, not a city. Does that matter?

The AG said no, it does not matter. Mississippi treats city and town housing authorities the same:

• § 43-33-5 authorizes housing authorities in any town, city, or county.
• § 21-1-1 classifies "municipal corporations" into cities or towns based on population, but the substantive housing-authority statutes do not distinguish between them in operation.
• § 43-33-1(g) defines the area of operation for a housing authority of a city as including "such city and the area within five (5) miles of the territorial boundaries thereof." That same five-mile buffer applies to a town housing authority because the AG reads the city/town statutes in pari materia (together as parts of the same scheme).
• § 43-33-7 does not specify residency for commissioners, but a long line of AG opinions has read it together with § 43-33-131 (regional housing authorities) to require commissioners to reside within the geographic boundaries of the housing authority's area of operation.

So the Town of Summit can appoint commissioners who live within five miles of the town's territorial boundaries, even if they live outside the town limits.

What this means for you

Mayors and town boards appointing commissioners

The opinion holds that a town may appoint housing-authority commissioners under § 43-33-7, and that commissioners must reside within the housing authority's territorial jurisdiction, which § 43-33-1(g) defines as the municipality "and the area within five (5) miles of the territorial boundaries thereof." So the residency pool is not limited to people who live inside the town limits; it extends to anyone living within that five-mile band.

Prospective commissioners

Under the opinion, living inside the town is not required to serve; the requirement is residing within the area of operation, which is the town plus the area within five miles of its boundaries (§ 43-33-1(g)).

Attorneys for a town housing authority

The opinion rests on reading the housing-authority statutes in pari materia. § 43-33-5 creates housing authorities in "each town or city," so the opinion concludes a reference to a "city housing authority" includes a town housing authority. Although § 43-33-7 is silent on residency, the opinion follows prior AG opinions (Patten 1992, Notter 2009) reading it together with § 43-33-131 to require commissioners to reside within the area of operation defined by § 43-33-1(g).

County or regional housing authorities

The opinion is about a town housing authority. Its in-pari-materia reasoning draws on § 43-33-131, which it describes as requiring regional housing commissioners to reside within the geographic boundaries of the housing authority; the opinion does not separately analyze county housing authorities.

Common questions

Q: What is a town versus a city in Mississippi?
A: § 21-1-1 classifies municipal corporations by population. The exact thresholds are in the statute. The classification matters for some governance purposes, but for housing authority residency, the AG opinion treats towns and cities the same.

Q: What's the "area of operation" under § 43-33-1(g)?
A: For a city housing authority, the area of operation is "such city and the area within five (5) miles of the territorial boundaries thereof." This is the geographic zone in which the housing authority is authorized to act and within which commissioners must reside.

Q: Do all five commissioners have to live within the area of operation?
A: § 43-33-7 calls for five commissioners to be appointed once the governing body adopts a resolution establishing the need for a municipal housing authority. The AG's opinion is that all commissioners must reside within the area of operation. There is no stated allowance for non-resident expertise members.

Q: What if a commissioner moves out of the area of operation during their term?
A: The opinion does not address that question. It addresses only who may be appointed and the residency requirement at appointment.

Q: What is the "area of operation"?
A: The opinion quotes § 43-33-1(g) defining it, for a housing authority of a city, as "such city and the area within five (5) miles of the territorial boundaries thereof," and applies that same definition to a town housing authority. It uses that definition to fix where commissioners must reside.

Q: Why use other statutes (§ 43-33-131) to read residency into § 43-33-7?
A: § 43-33-7 itself doesn't say where commissioners must live. The AG's longstanding view, supported by prior opinions (Patten 1992, Notter 2009), is that since other parts of the housing-authority law (§ 43-33-131 for regional authorities) explicitly require residency within the area of operation, reading the same rule into § 43-33-7 keeps the law internally consistent. This is the in-pari-materia canon: statutes on the same subject are read together.

Background and statutory framework

Mississippi's municipal and county housing authority law is in §§ 43-33-1 et seq. The structure:

• § 43-33-5 creates a public body corporate and politic called the "housing authority" of any town, city, or county.
• § 43-33-7 says, once the governing body adopts a resolution finding need for a municipal housing authority, five people are appointed as commissioners. The statute does not specify residency.
• § 43-33-1(g) defines the "area of operation" for a city housing authority as the city plus the five-mile buffer.
• § 43-33-131 governs regional housing authorities and explicitly requires commissioners to reside within the geographic boundaries of the housing authority.

The opinion fills the § 43-33-7 silence on residency by reading it in pari materia with § 43-33-131, citing prior opinions (Patten, 1992; Notter, 2009) for the rule that municipal housing commissioners must reside within the area of operation defined by § 43-33-1(g). It reaffirms that approach and applies it to a town. As the opinion puts it, treating town housing authorities differently from city housing authorities "would frustrate the meaning and intent of the municipal and county housing authority law."

Citations and references

Statutes:
- Miss. Code Ann. § 21-1-1 (classification of municipal corporations as cities or towns by population)
- Miss. Code Ann. § 43-33-1(g) (definition of "area of operation": city plus area within five miles of territorial boundaries)
- Miss. Code Ann. § 43-33-5 (creation of housing authorities in towns, cities, and counties)
- Miss. Code Ann. § 43-33-7 (appointment of five commissioners after resolution of need)
- Miss. Code Ann. § 43-33-131 (regional housing authorities; commissioner residency requirement)

Prior AG opinions referenced:
- MS AG Op., Johnson (Dec. 7, 2007): § 43-33-5 authorizes the creation of a housing authority in towns and cities.
- MS AG Op., Wright (May 2, 2014): in pari materia construction of housing authority statutes.
- MS AG Op., McWilliams (May 13, 2013): general rule that statutes on the same subject are read together.
- MS AG Op., Patten (Feb. 14, 1992): § 43-33-7 (city) and § 43-33-131 (regional) read in pari materia; commissioners must reside within the housing authority's geographic boundaries.
- MS AG Op., Notter (Feb. 13, 2009): municipal housing authority commissioners must reside within the area of operation as defined by § 43-33-1(g).
- MS AG Op., Barry (Sept. 15, 2000): once governing body adopts the resolution, five commissioners are appointed under § 43-33-7.

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/09/B.GilbertJr.-September-6-2023-Appointment-to-Town-Housing-Authority-Board.pdf

Original opinion text

September 6, 2023

Ben L. Gilbert, Jr., Esq.
Attorney, Town of Summit
Post Office Drawer 1919
McComb, Mississippi 39649-1919

Re: Appointment to Town Housing Authority Board

Dear Mr. Gilbert:

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

Question Presented

Does the language in Mississippi Code Annotated Section 43-33-1(g), which defines the "area of operation" of a city housing authority, and includes the term "city," still allow the town of Summit ("Town") to appoint individuals to the Town Housing Authority Board as long as they live within five miles of the Town?

Brief Response

Pursuant to Section 43-33-7, the Town may appoint individuals to serve as commissioners on the Housing Authority Board. Such individuals must reside within the territorial jurisdiction of the housing authority, which, as defined by Section 43-33-1(g), includes the Town "and the area within five (5) miles of the territorial boundaries thereof."

Applicable Law and Discussion

Sections 43-33-1, et seq. of the Mississippi Code govern municipal and county housing authorities. Section 43-33-5 provides that "[i]n each town or city and in each county of the state there is hereby created a public body corporate and politic to be known as the 'housing authority' of the town or city or county." (emphasis added). See also MS AG Op., Johnson at 1 (Dec. 7, 2007) ("Section 43-33-5 authorizes the creation of a housing authority in towns and cities."); Miss. Code Ann. § 21-1-1 (classifying municipal corporations into cities or towns based on population). Because the statute clearly authorizes housing authorities in both cities and towns, when a section refers to a city housing authority, it necessarily includes a town housing authority. See MS AG Op., Wright at 1 (May 2, 2014) (quoting MS AG Op., McWilliams at *4 (May 13, 2013) ("As a general rule, statutes or statutory provisions which relate to the same person or thing, or to the same class of persons or things or appear to be indicative of a general policy on a cognate subject matter are regarded as in pari materia.")). It is the opinion of this office that town housing authorities would be subject to the same requirements as city housing authorities. To conclude otherwise would frustrate the meaning and intent of the municipal and county housing authority law.

Section 43-33-5 establishes municipal housing authorities in cities and towns, and Section 43-33-7 states that once the governing body of a city (or town) adopts a resolution establishing the need for a municipal housing authority, five people shall be appointed as commissioners. MS AG Op., Barry at 1 (Sept. 15, 2000). While Section 43-33-7 does not speak to the residency of the commissioners, this office has previously opined that "[Section] 43-33-7, discussing city housing commissioners and [Section] 43-33-131, discussing regional housing commissioners, must be read in pari materia and that city housing commissioners, like regional housing authority commissioners, must reside within the geographic boundaries of the housing authority." MS AG Op., Patten at 2 (Feb. 14, 1992); see also MS AG Op., Notter at *1 (Feb. 13, 2009) (opining that municipal housing authority commissioners "must reside within the territorial jurisdiction of the housing authority as defined by Mississippi Code Annotated Section 43-33-1(g) which, in its definition of the term 'area of operation,' provides that in the case of a housing authority of a city, shall include such city and the area within five (5) miles of the territorial boundaries thereof.") (citation omitted).

In conclusion, individuals may be appointed as commissioners of a municipal housing authority, which would include that of a town, pursuant to the requirements in Section 43-33-7. Individuals appointed to the town housing authority must reside within the territorial jurisdiction of the housing authority as defined by Section 43-33-1(g).

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/ Gregory Alston
Gregory Alston
Special Assistant Attorney General