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
If you sit on a code charter municipality's governing board
You have ordinance-amendment authority. If a previous ordinance has not yet taken effect or has not produced reliance interests, you can revisit and reverse the decision. Practical considerations:
- Know your charter type. § 21-3-3 applies specifically to code charter municipalities. Special-charter cities have their own structures.
- Watch the calendar. Election deadlines matter. Filing periods, ballot preparation, candidate qualifications, party processes all run on specific timelines. Coordinate with the circuit clerk and the Secretary of State's elections division.
- Document the rationale. A board reversal looks more defensible when the minutes explain why (community feedback, accountability concerns, evolving policy view).
- Avoid contractual entanglements. If you have already engaged in a search process, signed letters of intent, or contracted with a recruiter, untangle those carefully or wait for them to expire.
If you are a mayor or chief of police affected by such an ordinance
The opinion does not give you a vested right in the office structure. If you are the current elected chief and the office is converting to appointed, you complete your elected term (the appointive ordinance does not take effect during your term per § 21-3-3). If the Board reverses the appointive ordinance before it takes effect, you are still an elected officeholder facing the next election under whatever rules apply.
If you are a candidate for chief of police in a code charter city
Whether the office is elected or appointed in your city is set by ordinance, and that ordinance can change. Before you start a campaign, confirm the current state of the law. If you were planning to run in 2025 for an office that has been converted to appointive (or vice versa), watch for any ordinance amendments through the year leading up to the qualifying period.
If you are a city attorney
This opinion is good citation for the proposition that ordinance changes are reversible until they create reliance interests. If your client board passed an ordinance and now regrets it, you have authority to draft an amending or repealing ordinance under § 21-13-9 (and the related provisions in § 21-13-15). Build in:
- A clear effective date that respects election deadlines.
- A savings clause for any actions taken in reliance on the prior ordinance.
- A clean statement of legal authority (§ 21-3-3, § 21-13-9, and the AG opinion if you find it useful).
If you are a Brookhaven resident
Whether your police chief is elected or appointed is being decided by the Board of Aldermen under state law that explicitly contemplates either option. Public meetings on the proposed ordinance are the right place to weigh in. The Board can change its mind; that's a feature, not a bug, of representative local government.
Common questions
Q: What is a "code charter municipality"?
A: Under Mississippi law, municipalities operate under various charter types: code charter (the default code form), special charter (a unique legislative grant), commission, or council-manager forms. § 21-3-3 applies to code charter municipalities.
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: § 21-3-3 says no such ordinance can be adopted within 90 days of a regular general election for municipal officers, and no such ordinance can become effective during the term of an affected officer. These are timing protections to prevent mid-term office abolition.
Q: Can the Board change its mind every year?
A: Legally, yes. Practically, repeatedly flipping an office from elected to appointed and back creates uncertainty for candidates and voters. § 21-3-3 forbids changes within 90 days of an election, and the rest is up to the Board's judgment.
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: What if a candidate has already filed to run for the office?
A: This opinion does not address that scenario directly. Election laws have detailed rules about ballot preparation and candidate qualifications. A change made too late can disrupt a pending election. Coordinate with the circuit clerk and the Secretary of State's office to find a workable timeline.
Q: What about contractual obligations the Board has entered into?
A: The Board cannot use ordinance reversal to impair its existing contracts. If, for example, the Board had signed an employment agreement with someone in reliance on the appointive ordinance, the Board must respect that agreement until it ends or is modified.
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