If a re-elected Mississippi alderman was never sworn in for the new term, are the votes still valid?

Plain-English summary

Indianola's mayor wrote in to ask what happens when a duly re-elected alderman was sworn in for the original term but, due to oversight, never re-sworn for subsequent terms. Are the laws and ordinances the alderman has voted on since then still good?

The AG's answer in plain terms: yes. The proper procedure is for elected municipal officers to take a fresh oath at the first regular meeting of each new term, per Article 14, Section 268 of the Mississippi Constitution and Section 21-15-3. But missing that step does not retroactively void everything the officer has done in the meantime. The alderman is, at minimum, a "de facto officer" — someone who holds and exercises an office under color of authority but lacks the strict formal qualification. Section 25-1-37 says the official acts of a person in possession of a public office and exercising its functions are valid and binding, even if the person is not lawfully entitled or qualified. The official is personally exposed to the statutory penalties for usurping office, but the public acts stand.

The AG flagged one threshold caveat: if Indianola's special charter speaks to oath requirements, the charter controls. The opinion is limited to general state statutes because the AG cannot interpret special charters.

What this means for you

For mayors and city clerks

First, fix the oversight going forward. Schedule the alderman's oath of office immediately so future actions stand on firm ground. Second, breathe a little easier about the past: the votes the alderman cast while not formally re-sworn are not retroactively invalid, because Section 25-1-37 protects the public from getting whipsawed by a missed administrative step.

If Indianola operates under a special charter (it does), pull the charter and check it for oath requirements. Charter language can override general law on this issue. The AG's opinion is conditioned on charter silence.

For aldermen and other elected municipal officers in Mississippi

The constitutional and statutory expectation is that you take a new oath at the start of each new term. Article 14, Section 268 is the constitutional source; Section 21-15-3 puts it into the municipal code. If a city missed the swearing-in, your acts as alderman are still valid as de facto official acts, but you are personally subject to the statutory penalties for usurping or unlawfully holding office. Section 25-1-37. Take the oath as soon as the oversight is discovered.

For municipal attorneys

The de facto officer doctrine has a long Mississippi pedigree, codified in Section 25-1-37 and recognized by the Mississippi Supreme Court at least since Upchurch v. City of Oxford, 17 So. 2d 204 (Miss. 1944). The protection is for the public's reliance on the validity of official acts, not for the officer's personal interest. Section 25-1-37 expressly preserves "all the penalties imposed by law for usurping or unlawfully holding office, or for exercising the functions thereof without lawful right or without being qualified according to law." So if a question of officer liability comes up alongside the question of the validity of the acts, those are separate analyses.

The threshold step in any such case is the special charter, if the city is a special charter municipality. MS AG Op., Gaylor (Dec. 15, 2006) and MS AG Op., Lowe (Feb. 13, 2009) establish the rule that a special charter's specific provisions control over general municipal law. Check the charter first.

For citizens worrying about whether the ordinances they live under are real

The ordinances are real. Even if a member of the board failed to take a fresh oath after re-election, the ordinances passed by the board remain in effect. The de facto officer doctrine exists exactly to prevent the chaos that would follow if every administrative oversight rolled back years of municipal action.

Common questions

Does a re-elected Mississippi alderman have to take a new oath?

Yes. Article 14, Section 268 of the Mississippi Constitution and Section 21-15-3 of the Mississippi Code require an oath at the first regular meeting after each regular municipal election. The oath is the formal step that "qualifies" the officer to discharge the office's duties.

What happens if the oath is skipped?

The acts of the officer are still valid as official acts under Section 25-1-37, because the officer is in possession of the office and exercising its functions. The person, however, may be personally subject to the statutory penalties for usurping or holding office without proper qualification.

What is a "de facto officer"?

"An officer de facto is one who exercises the powers and discharges the functions of an office, being then in possession of the same under color of authority, but without actual right thereto." Oliver v. State, 362 So. 3d 1110, 1113 (Miss. Ct. App. 2019), a Mississippi Court of Appeals decision (the "So. 3d" reporter is the regional reporter for Mississippi state cases).

What does Section 25-1-37 say?

"The official acts of any person in possession of a public office and exercising the functions thereof shall be valid and binding as official acts in regard to all persons interested or affected thereby, whether such person be lawfully entitled to hold the office or not and whether such person be lawfully qualified or not; but such person shall be liable to all the penalties imposed by law for usurping or unlawfully holding office, or for exercising the functions thereof without lawful right or without being qualified according to law."

What if the city has a special charter that addresses oaths differently?

The special charter controls. Mississippi recognizes that the specific provisions of a municipal special charter take precedence over conflicting general municipal law. The AG cannot interpret special charters, so the opinion is conditioned on the charter being silent on the question.

Does the same de facto officer doctrine apply to other public officers, not just aldermen?

Yes. Section 25-1-37 is general; it applies to any person in possession of a public office and exercising its functions. Mississippi cases have applied the doctrine across many public-office contexts.

Background and statutory framework

Article 14, Section 268, Mississippi Constitution. Requires public officers to take an oath of office before discharging their duties.

Section 21-15-3. "At the first regular meeting of the governing authorities succeeding each regular municipal election, they shall elect the officers to be elected by them and such officers shall take the oath of office."

Section 25-1-37. Validates the official acts of a person in possession of a public office and exercising its functions, regardless of formal qualification, while preserving personal liability for usurpation or unlawful holding.

The de facto officer doctrine. Recognized in Mississippi since at least Upchurch v. City of Oxford, 17 So. 2d 204 (Miss. 1944), and reaffirmed in Oliver v. State, 362 So. 3d 1110 (Miss. Ct. App. 2019).

Special charter rule. MS AG Op., Gaylor (Dec. 15, 2006), and MS AG Op., Lowe (Feb. 13, 2009), establish that specific provisions of a municipal special charter control over general municipal law. The AG cannot interpret special charters.

Citations

• Miss. Const. art. 14, § 268
• Miss. Code Ann. § 21-15-3
• Miss. Code Ann. § 25-1-37
• Oliver v. State, 362 So. 3d 1110 (Miss. Ct. App. 2019)
• Upchurch v. City of Oxford, 17 So. 2d 204 (Miss. 1944)
• MS AG Op., Minor (Mar. 18, 2005)
• MS AG Op., Davis (Jan. 31, 2011)
• MS AG Op., Gaylor (Dec. 15, 2006)
• MS AG Op., Lowe (Feb. 13, 2009)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/10/K.Featherstone-September-17-2024-Swearing-In-Alderman.pdf

Original opinion text

September 17, 2024
The Honorable Ken Featherstone
Mayor, City of Indianola
101 Front Street
Indianola, Mississippi 38751
Re:

Swearing In of Member of Board of Aldermen

Dear Mayor Featherstone:
The Office of the Attorney General has received your request for an official opinion.
Question Presented
If a duly reelected member of the board of aldermen has not been sworn in for each new term
(every four years), but was initially sworn in under a previous administration, is there any effect
on the laws and ordinances the subject alderman voted on?
Brief Response
Assuming Indianola's special charter is silent on this question, at a minimum, the subject alderman
would be considered a de facto officer, and a de facto officer's official acts are valid and binding.
Applicable Law and Discussion
As an initial matter, if Indianola's special charter speaks to this issue, then the charter controls.
See MS AG Op., Gaylor at 1 (Dec. 15, 2006) ("[W]here the provisions of
a special charter conflict with general law[,] . . . the specific provisions of a
municipal special charter will take precedence over the provisions of general municipal law.");
MS AG Op., Lowe at * 1 (Feb. 13, 2009) ("[P]rovisions of a special charter that are contrary to
general statutory provisions are viewed by this office as exceptions to the general law, except
where the general statutes expressly provide otherwise."). However, because this office cannot
interpret special charters, this opinion is limited to interpretation of state law.
This office has previously opined that "[b]efore a municipal officer is qualified to discharge the
duties and functions of that office, the officer must first be sworn in and take the oath of office as
provided by Article 14, Section 268 of the Mississippi Constitution of 1890." MS AG Op., Minor
at 1 (Mar. 18, 2005). Mississippi Code Annotated Section 21-15-3 likewise provides: "[a]t the
first regular meeting of the governing authorities succeeding each regular municipal election, they
shall elect the officers to be elected by them and such officers shall take the oath of office."
In your request, you indicate that the subject alderman was initially sworn into office under a
previous administration but due to oversight was not re-sworn in for subsequent terms served. At
a minimum, the subject alderman would be considered an officer de facto. "An officer de facto is
one who exercises the powers and discharges the functions of an office, being then in possession
of the same under color of authority, but without actual right thereto." Oliver v. State, 362 So. 3d
1110, 1113 (Miss. Ct. App. 2019) (quoting Upchurch v. City of Oxford, 17 So. 2d 204, 204 (Miss.
1944)). Pursuant to Section 25-1-37, "the official acts of de facto officers are valid and binding."
MS AG Op., Davis at *2 (Jan. 31, 2011). Specifically, Section 25-1-37 provides:
The official acts of any person in possession of a public office and exercising the
functions thereof shall be valid and binding as official acts in regard to all persons
interested or affected thereby, whether such person be lawfully entitled to hold the
office or not and whether such person be lawfully qualified or not; but such person
shall be liable to all the penalties imposed by law for usurping or unlawfully holding
office, or for exercising the functions thereof without lawful right or without being
qualified according to law.
The status of the subject alderman requires a factual determination that cannot be made by this
office. See Miss. Code Ann. § 7-5-25. This said, even if it is determined that the subject alderman
has been acting as a de facto officer, there is no effect on the laws and ordinances he or she voted
on.
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/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General