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Donald J. Rafferty, Esquire

Office of the Attorney GeneralAugust 10, 2016

2016 WL 4965377 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2016-00316
*1 August 10, 2016

Re: Senate Bill 2587 (hold-over Service Limited to 180 Days)

 
*1 Donald J. Rafferty, Esquire
*1 Attorney for City of Bay St. Louis
*1 Post Office Box 4252
*1 Gulfport, Mississippi 39502
Dear Mr. Rafferty:
*1 Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.
*1 You state that the City of Bay St. Louis has the Mayor-Council form of government and cite Senate Bill 2587, General Laws of 2016, and pose five (5) questions in regard thereto.
 
Background
 
*1 Senate Bill 2587 provides that “no person shall serve in an interim or hold-over capacity for longer than one hundred eighty (180) days after the expiration of the term to which he or she was appointed in a position that is required by law to be filled by appointment of the governing body of a municipality, or by mayoral appointment with the advice and consent of the council or aldermen, including positions on boards, commissions or authorities.”
*1 It further provides that if such a position is not filled within 180 days after the expiration of the term, no municipal funds may be expended to compensate any person serving in the position.
 
Preface
 
*1 We preface this opinion by stating that the provisions of Senate Bill 2587 are applicable to all forms of municipal government, including special charter municipalities. Mississippi Code Annotated Sections 21-15-1, 21-15-3 and 21-15-39 (Revised 2015).
 
Questions and Responses
 
*1 Question 1: In Section 1, Paragraph 1, the Bill speaks of “... the expiration of the term...” Is the term contemplated in the statute the same as the term of the Governing Authority, (which would be the Mayor and City Council), or some other time/term?
*1 Response: Absent a term set by statute, the term would be concurrent with the governing authorities. MS AG Op., Shephard (April 30, 1986).
*1 Question 2: Does Senate Bill 2587, pertain to “Department Heads” in a Mayor-Council form of government pursuant to Miss. Code Ann. Section 21-8-1 et seq., and in particular, Section 21-8-23?
*1 Response: Yes. Section 21-8-23 (2) authorizes department heads of a mayor-council municipality to “hold over” until the appointment and qualification of their successors. The term “no person” in Senate Bill 2587 would include department heads of a mayor-council municipality.
*1 Question 3: Does Senate Bill 2587, pertain to employees of a municipality in a Mayor-Council form of government?
*1 Response: Yes. We have previously opined that, at the expiration of the term of the governing authorities who made the appointments, municipal employees hold over and serve until their successors are appointed and qualified. MS AG Op., Holder (September 25, 2009); MS AG Op., Dyer (August 31, 2001). As with department heads, the term “no person” would include municipal employees who are holding over.
*2 Question 4: Would the 180 day period begin after July 1, 2016, or before?
*2 Response: The general rule is that a statute is prospective and not retroactive in operation, unless the statute clearly specifies to the contrary. MS AG Op., Dantin (August 1, 1997), citing State ex rel. Moore v. Molpus, 578 So.2d 624 (Miss. 1991).
*2 There is nothing in Senate Bill 2587 that indicates that it is retroactive.
*2 Senate Bill 2587 became effective on July 1, 2016.
*2 We are of the opinion that the 180-day period would begin at the end of any term that expires on or after July 1, 2016.
*2 We understand that the City of Bay Saint Louis will conduct its next general election in June 2017. Section 21-15-1 provides that the new term will begin on July 1 after such general election “that is not on a weekend.” Since July 1, 2017, falls on a Saturday, the new term will begin on July 3, 2017, at which time the 180-day period for anyone holding over would begin.
*2 Separate and apart from the legal provisions of Senate Bill 2587, we are of the opinion that allowing individuals to continue to serve for many months or even years in an interim or hold-over capacity is inappropriate.
*2 In addressing the hold-over provisions of Section 21-8-23 in a situation in which a newly elected mayor of a mayor-council municipality delayed more than six (6) months to appoint department heads and “city appointees,” we said:
*2 (I)t is the opinion of this office that the intent of this provision of law is that a mayor shall make such appointments within a reasonable time... MS AG Op., Carroll (February 24, 2006).
*2 While the 180-day period for persons serving on an interim or hold-over basis for the City of Bay Saint Louis will not begin until July 3, 2017, we are of the opinion that allowing such persons to continue to serve in those situations for that period of time is far beyond a reasonable amount of time to make new appointments and is contrary to the intent of statutes that allow such interim or hold-over service.
*2 Therefore, we strongly advise the Mayor to, forthwith, make the necessary appointments to avoid being in conflict with the obvious intent of the general law on hold-over and interim service.
*2 Question 5: Is this legislation applied retroactively or prospectively?
*2 Response: See our response to Question 4.
Sincerely,
*2 Jim Hood
*2 Attorney General
*2 By: Phil Carter
*2 Special Assistant Attorney General
2016 WL 4965377 (Miss.A.G.)
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