Can a Mississippi city's board of aldermen reverse an earlier ordinance making the police chief an appointed position and switch back to electing the chief?

Plain-English summary

Brookhaven is a code charter municipality in Mississippi. Its Board of Aldermen voted to convert the chief of police from an elected position to one of appointment under § 21-3-3. The change was scheduled to take effect after the current elected chief's term ended in 2025. Before that change took effect, the Board started having second thoughts and asked whether it could reverse course and return the office to elected status.

The AG said yes. § 21-3-3 lets code charter municipalities make their elected offices (other than mayor and aldermen) appointive by ordinance, and §§ 21-13-1 et seq. give municipal governing authorities the power to pass and amend ordinances. § 21-13-9 specifically addresses amendment and repeal. The AG also noted a long-standing principle that "a board may reconsider any action previously taken by it, so long as the reconsideration does not impair contractual obligations already entered into by the board."

The Board can therefore amend, repeal, or rescind the ordinance making the chief appointed and return the office to elected status. There are practical guardrails:

• Comply with election laws and timing. § 21-3-3 itself bars adopting an ordinance making an office appointive within 90 days of a regular general election for municipal officers, and provides that no such ordinance becomes effective during the term of an officer whose office is affected. While this opinion is about the reverse direction (going back to elected), the Board still must allow enough lead time for the election to be conducted on schedule.
• Don't impair existing contracts. If anyone has been hired or appointed in reliance on the new ordinance, the Board has to be careful not to step on those obligations.

What this means for you

Code charter municipal boards

The opinion holds that a code charter board has authority under §§ 21-13-1 et seq. to amend, repeal, or rescind its ordinance and return the chief of police to an elected office. It also cites the AG's consistent view that "a board may reconsider any action previously taken by it, so long as the reconsideration does not impair contractual obligations already entered into by the board." The opinion attaches one condition: if the board does this, "it must comply with all applicable election laws and regulations in sufficient time to allow the election to be conducted in accordance with the pertinent election deadlines."

The current chief of police and the office structure

Under the § 21-3-3 text the opinion quotes, an ordinance making an office appointive "shall [not] become effective during the term of office of any officer whose office shall be affected thereby." The opinion's question concerned an appointive change set to begin after the current elected chief's term ends in 2025, and it holds the board may reverse that change before it takes effect.

City attorneys

The opinion grounds the board's authority in § 21-3-3 (which lets code charter municipalities make offices other than mayor and aldermen appointive by ordinance), §§ 21-13-1 et seq. and § 21-13-9 (passage, amendment, and repeal of ordinances), § 21-13-15 (revision and codification), and the Thomas opinion's reconsideration principle. Its only express caveat is compliance with applicable election laws and deadlines.

Common questions

Q: What is a "code charter municipality"?
A: It is a municipality operating under Mississippi's code charter form of government. The opinion notes Brookhaven is a code charter municipality, and § 21-3-3 (which the opinion applies) governs the elective officers of municipalities operating under a code charter.

Q: Which offices can a code charter municipality make appointive?
A: § 21-3-3 lists the elective officers as the mayor, aldermen, municipal judge, the marshal or chief of police, the tax collector, and the tax assessor. Of those, the mayor and aldermen must remain elected. The others can be made appointive by ordinance.

Q: Are there timing limits on ordinance changes?
A: The § 21-3-3 text quoted in the opinion provides that an ordinance making an office appointive cannot be adopted within 90 days before a regular general election for municipal officers, and cannot become effective during the term of an officer whose office is affected.

Q: Can the Board reverse a decision it already made?
A: The opinion says yes, citing the AG's consistent view that a board may reconsider a prior action so long as it does not impair contractual obligations already entered into, plus the board's ordinance amendment and repeal authority under §§ 21-13-1 et seq.

Q: Does this opinion only apply to chiefs of police?
A: No. The AG's reasoning applies broadly to ordinance amendments. § 21-3-3 covers other elective offices that can be made appointive. The same authority to amend or repeal applies to those.

Q: Does the board have to watch election timing?
A: Yes. The opinion conditions the reversal on the board complying "with all applicable election laws and regulations in sufficient time to allow the election to be conducted in accordance with the pertinent election deadlines." It does not spell out those deadlines.

Q: What about contracts the board has already entered into?
A: The opinion's reconsideration principle is limited: a board may reconsider a prior action "so long as the reconsideration does not impair contractual obligations already entered into by the board."

Background and statutory framework

§ 21-3-3 is the default playbook for code charter cities. It identifies who is elected, who can be made appointive, and the procedural guardrails:

The elective officers of all municipalities operating under a code charter shall be the mayor, the aldermen, municipal judge, the marshal or chief of police, the tax collector and the tax assessor. . . . Such governing authorities shall have the further power to provide that all or any of such officers, except those of mayor and aldermen, shall be appointive, in which case the marshal or chief of police, the tax collector, the tax assessor, and the city or town clerk, or such of such officers as may be made appointive, shall be appointed by the governing authorities. Any action taken by the governing authorities to make any of such offices appointive shall be by ordinance of such municipality, and no such ordinance shall be adopted within ninety (90) days prior to any regular general election for the election of municipal officers. No such ordinance shall become effective during the term of office of any officer whose office shall be affected thereby.

The general ordinance-passing authority is in §§ 21-13-1 et seq. § 21-13-9 governs amendment and repeal of municipal ordinances. § 21-13-15 covers revision and codification. Together, these statutes give a code charter board ample tools to change course.

The AG also leaned on a recurring rule that boards have inherent authority to reconsider their own actions, citing the 2010 Thomas opinion. This is a backstop principle: even where a specific ordinance amendment statute does not apply, a board can revisit its earlier decisions absent an impairment of contract.

Citations and references

Statutes:

• Miss. Code Ann. § 21-3-3 (elective officers of code charter municipalities; authority to make offices appointive by ordinance; timing limits)
• Miss. Code Ann. §§ 21-13-1 et seq. (municipal ordinances generally)
• Miss. Code Ann. § 21-13-9 (amendment and repeal of municipal ordinances)
• Miss. Code Ann. § 21-13-15 (revision and codification of municipal ordinances)

Prior AG opinion referenced:

• MS AG Op., Thomas (July 30, 2010): a board may reconsider any action previously taken by it, so long as the reconsideration does not impair contractual obligations.

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/09/B.Moak-September-14-2023-Elected-Chief-of-Police.pdf

Original opinion text

September 14, 2023

Bobby Moak, Esq.
Attorney, City of Brookhaven
Post Office Box 242
Bogue Chitto, Mississippi 39629

Re: Elected Chief of Police

Dear Mr. Moak:

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

Background

According to your request, the Brookhaven Board of Aldermen ("Board") recently voted to change the office of the chief of police from an elected position to one of appointment pursuant to Section 21-3-3 of the Mississippi Code. The term of the appointed office would begin the first day after the current elected office holder's elected term ends in 2025. However, the question has now arisen as to whether the Board may amend its ordinance and return the office of chief of police back to one that is elected.

Question Presented

Does the Board have the authority to amend its ordinance and return the office of chief of police back to one that is elected?

Brief Response

Yes, the Board has the authority pursuant to Mississippi Code Annotated Sections 21-13-1 et seq., to amend, repeal, or rescind its ordinance and return the office of chief of police back to an elected position.

Applicable Law and Discussion

Brookhaven is a code charter municipality. Code charter municipalities have the authority to change the office of chief of police from an elected position to an appointed position pursuant to Section 21-3-3, which provides, in part:

The elective officers of all municipalities operating under a code charter shall be the mayor, the aldermen, municipal judge, the marshal or chief of police, the tax collector and the tax assessor. . . . Such governing authorities shall have the further power to provide that all or any of such officers, except those of mayor and aldermen, shall be appointive, in which case the marshal or chief of police, the tax collector, the tax assessor, and the city or town clerk, or such of such officers as may be made appointive, shall be appointed by the governing authorities. Any action taken by the governing authorities to make any of such offices appointive shall be by ordinance of such municipality, and no such ordinance shall be adopted within ninety (90) days prior to any regular general election for the election of municipal officers. No such ordinance shall become effective during the term of office of any officer whose office shall be affected thereby.

The governing authorities of municipalities have the power to pass ordinances in accordance with Sections 21-13-1 et seq. Section 21-13-9 provides for the amendment and repeal of municipal ordinances; see also Section 21-13-15 (titled "Revision and codification"). Alternatively, this office has "consistently opined that a board may reconsider any action previously taken by it, so long as the reconsideration does not impair contractual obligations already entered into by the board." MS AG Op., Thomas at *1 (July 30, 2010) (internal citations omitted). Thus, it is the opinion of this office that the Board may amend, repeal, or rescind its ordinance making the office of chief of police an appointed position. However, if the Board chooses to do this, it must comply with all applicable election laws and regulations in sufficient time to allow the election to be conducted in accordance with the pertinent election deadlines.

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