In a Mississippi code-charter city, can the mayor issue an ordinance, and can the board of aldermen override one if he does?

Plain-English summary

Alderman Bennett of Long Beach asked two questions about the division of legislative authority in a code-charter municipality:

1. Does the Board of Aldermen have exclusive authority to issue ordinances?
2. If not, can the Board override an ordinance issued by the mayor?

The AG's answers track the constitutional separation of powers and the specific statutory framework for code-charter cities.

On exclusive authority: Yes, with a narrow exception. Section 21-3-15 vests the legislative power of a code-charter municipality in the Board of Aldermen. The mayor exercises executive power: presiding at meetings, casting a tie-breaking vote, supervising officers and affairs, executing the laws and ordinances adopted by the board. Section 21-3-15(3) defines "ordinance" to include "ordinances, resolutions and orders," so the entire legislative output is the board's exclusive domain.

The mayor has a veto on ordinances. Within ten days of receiving an ordinance, the mayor can sign it or return it to the board with written objections. If returned, the board can override with a two-thirds vote of all members on or after the third day following return. If the mayor neither signs nor returns within fifteen days, the ordinance takes effect.

The narrow exception is civil-emergency orders. Under Section 45-17-1 et seq., a mayor can proclaim a civil emergency and issue "orders as are necessary for the protection of life and property" (Section 45-17-7(e)). This is a delegated emergency power; outside an emergency, the mayor has no ordinance-issuing power.

On board override: A mayor's attempt to issue a regular ordinance would be invalid as a separation-of-powers violation. The board does not need to "override" because the action is invalid from the start. For civil-emergency orders, Section 45-17-1 et seq. does not provide an override procedure; the mayor's emergency-order authority operates within its statutory framework.

The opinion cites Article I, Sections 1 and 2 of the Mississippi Constitution (separation of powers) and the 2006 White opinion (a mayor of a mayor-council municipality lacked authority to regulate certain activities by executive order). It also cites Suggs v. Town of Caledonia, 470 So. 2d 1055 (Miss. 1985), for the principle that "the unauthorized acts of one of its officials does not estop a municipality from acting in its governmental capacity."

The AG declined to opine on whether any specific past action by the Long Beach mayor was an invalid ordinance; that is a factual question for the city.

What this means for you

For code-charter city attorneys and officials

The opinion reads Section 21-3-15 as putting the legislative power of a code-charter municipality in the board of aldermen and the executive power in the mayor. On that reading, an attempt by a mayor to issue an ordinance under Section 21-3-15 "would be invalid" as a separation-of-powers matter, so there is nothing for the board to "override." The only mayoral exception the opinion identifies is a civil emergency proclaimed under Section 45-17-1 et seq., where Section 45-17-7(e) lets the mayor issue "orders as are necessary for the protection of life and property."

For mayors of code-charter cities

Under the opinion, the mayor's role is executive: presiding at board meetings, casting the deciding vote on a tie, superintending the city's officers and affairs, and taking care that the laws and ordinances are executed. Section 21-3-15(2)(b) gives the mayor a veto, with a ten-day window to sign or return an ordinance with written objections. The opinion treats direct mayoral ordinances (outside a proclaimed civil emergency) as invalid.

For boards of aldermen

The opinion holds that the board's legislative power under Section 21-3-15 is exclusive, and that the term "ordinance" in that section "include[s] ordinances, resolutions and orders." Where a mayor purports to issue an ordinance, the opinion's view is that the action is invalid from the start rather than something the board must formally undo.

For residents disputing a local law

The opinion does not resolve any particular dispute. It speaks only to the general allocation of authority: ordinances come from the board (subject to the mayor's signature or veto-override), and a mayor's unilateral ordinance outside a civil emergency is, in the AG's view, invalid. The AG expressly declined to say whether the Long Beach mayor had in fact issued an invalid ordinance, calling that a factual question.

For emergency management officials

The opinion recognizes the mayor's authority during a proclaimed civil emergency under Section 45-17-1 et seq. to issue orders "necessary for the protection of life and property" (Section 45-17-7(e)). It notes that this statutory scheme "does not expressly provide for an override by the board of aldermen."

Common questions

Q: What is a "code-charter municipality"?
A: A Mississippi city operating under the general code provisions in Title 21, with mayor-board governance under Section 21-3-15. Long Beach is a code-charter city. The opinion's holding is framed specifically for that structure.

Q: Can a mayor of a code-charter city issue an ordinance?
A: Under the opinion, no, with one narrow exception. The board of aldermen holds the legislative power under Section 21-3-15, and the AG concluded that "any attempt by a mayor to issue an ordinance would be a violation of the separation of powers doctrine." The exception is orders issued during a civil emergency proclaimed under Section 45-17-1 et seq.

Q: Can the board override a mayor's emergency order?
A: The opinion says the civil-emergency statute "does not provide a procedure for a board of aldermen to override such an order." It does not describe any board override of an emergency order.

Q: What happens if the mayor neither signs nor vetoes an ordinance?
A: Under Section 21-3-15(2)(b), as quoted in the opinion, an ordinance takes effect if the mayor fails to return it before the next board meeting, but no later than fifteen days after it was presented. The board can also override a veto by a two-thirds vote on or after the third day following the mayor's return.

Q: Did the AG rule on whether the Long Beach mayor's past actions were valid?
A: No. The opinion states that under Section 7-5-25 it provides future guidance only and "can neither validate nor invalidate past action," and that it does not opine on whether the mayor had in fact issued an invalid or unlawful ordinance.

Background and statutory framework

The opinion rests on the separation of powers in the Mississippi Constitution of 1890. Article I, Section 1 divides state government into legislative, judicial, and executive departments, and Article I, Section 2 provides that no person belonging to one department "shall exercise any power properly belonging to either of the others."

Section 21-3-15 applies that structure to code-charter municipalities. The opinion quotes the statute: the mayor presides, casts the deciding vote on a tie, exercises the executive power, and superintends the city's officers and affairs (subsection (1)); the legislative power is exercised by the board of aldermen by a vote in a legally called meeting (subsection (2)(a)); ordinances adopted by the board go to the mayor for signature, veto, or veto-override (subsection (2)(b)); and "ordinance" includes ordinances, resolutions, and orders (subsection (3)). Section 21-13-1 et seq. governs the procedure for passing ordinances.

The civil-emergency exception comes from Section 45-17-1 et seq., under which the mayor may proclaim a civil emergency and, per Section 45-17-7(e), issue orders necessary for the protection of life and property. The opinion notes this scheme contains no board-override procedure.

The opinion cites the 2006 White opinion (mayor of a mayor-council municipality lacked authority to regulate certain activities by executive order) and the 2020 Thomas opinion (board of aldermen as the legislative branch). It closes by quoting Suggs v. Town of Caledonia, 470 So. 2d 1055, 1057 (Miss. 1985), that "the unauthorized acts of one of its officials does not estop a municipality from acting in its governmental capacity."

Citations and references

Statutes:

• Miss. Code Ann. § 21-3-15, mayor-board governance in code-charter municipalities
• Miss. Code Ann. § 21-13-1 et seq., procedure for passing ordinances
• Miss. Code Ann. § 45-17-1 et seq., civil emergencies; mayor's emergency authority
• Miss. Code Ann. § 45-17-7(e), mayoral emergency orders during proclaimed civil emergency

Mississippi Constitution:

• Miss. Const. art. 1, § 1 (separation of powers)
• Miss. Const. art. 1, § 2 (no person in one branch shall exercise power of another)

Case:

• Suggs v. Town of Caledonia, 470 So. 2d 1055 (Miss. 1985), unauthorized acts of officials do not estop municipality

Prior AG opinions cited:

• MS AG Op., Magee (Aug. 29, 2008), AG opinions cannot validate or invalidate past actions
• MS AG Op., Thomas (July 31, 2020), board of aldermen as legislative branch
• MS AG Op., White (June 2, 2006), mayor of mayor-council city lacked authority to regulate by executive order

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/12/P.Bennett-November-18-2021-Ordinances-in-a-Code-Charter-Municipality.pdf

Original opinion text

November 18, 2021

The Honorable Patrick Bennett
Alderman, City of Long Beach
126 Jeff Davis Avenue
Long Beach, Mississippi 39560

Re: Ordinances in a Code Charter Municipality

Dear Mr. Bennett:

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

Questions Presented

1. Does the Board of Aldermen (the "Board") of the City of Long Beach, a code charter municipality, have the exclusive authority to issue city ordinances?

2. If not, can the Board override an ordinance issued by the Mayor?

Brief Response

1. The Board has exclusive authority under Mississippi Code Annotated Section 21-3-15, applicable to code charter municipalities, to adopt ordinances, which, by definition, include resolutions and orders. However, in very limited circumstances, such as a civil emergency proclaimed pursuant to Section 45-17-1, et seq., the mayor has authority to issue orders.

2. An attempt by a mayor to issue an ordinance under Section 21-3-15 would be invalid. If a mayor issues an order during a civil emergency proclaimed pursuant to Section 45-17-1, et seq., the statute does not provide a procedure for a board of aldermen to override such an order.

Applicable Law and Discussion

Pursuant to Section 7-5-25, opinions of the Attorney General are issued on questions of law for the future guidance of those officials entitled to receive them. An Attorney General's opinion can neither validate nor invalidate past action. MS AG Op., Magee at *1 (Aug. 29, 2008). Therefore, this opinion is for future guidance only and does not address any action already taken.

Article I, Section 1 of the Mississippi Constitution of 1890 sets forth the three branches of government:

The powers of the government of the State of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.

Article I, Section 2 provides that "[n]o person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others."

Section 21-3-15, which outlines the duties and powers of a mayor and board of aldermen in a code charter municipality, provides:

(1) The mayor shall preside at all meetings of the board of aldermen, and in case there shall be an equal division, shall give the deciding vote. The executive power of the municipality shall be exercised by the mayor, and the mayor shall have the superintending control of all the officers and affairs of the municipality, and shall take care that the laws and ordinances are executed.

(2)(a) The legislative power of the municipality shall be exercised by the board of aldermen by a vote within a legally called meeting. No member of the board of aldermen shall give orders to any employee or subordinate of a municipality other than the alderman's personal staff.

(b) Ordinances adopted by the board of aldermen shall be submitted to the mayor. The mayor shall, within ten (10) days after receiving any ordinance, either approve the ordinance by affixing his signature thereto, or return it to the board of aldermen by delivering it to the municipal clerk together with a written statement setting forth his objections thereto or to any item or part thereof. No ordinance or any item or part thereof shall take effect without the mayor's approval, unless the mayor fails to return an ordinance to the board of aldermen prior to the next meeting of the board, but no later than fifteen (15) days after it has been presented to him, or unless the board of aldermen, upon reconsideration thereof on or after the third day following its return by the mayor, shall, by a vote of two-thirds (2/3) of the members of the board, resolve to override the mayor's veto.

(3) The term "ordinance" as used in this section shall be deemed to include ordinances, resolutions and orders.

Accordingly, the Board, as the legislative branch of municipal government is charged with passing ordinances, orders, and resolutions that govern the operation of municipal government. MS AG Op., Thomas at *2 (July 31, 2020). Section 21-13-1, et seq. governs the procedure for passing such ordinances. The mayor exercises executive powers and is required by law to enforce such ordinances, resolutions, and orders of the board of aldermen. Id.

Generally speaking, given the allocation of authority outlined above, any attempt by a mayor to issue an ordinance would be a violation of the separation of powers doctrine. See MS AG Op., White at *1 (June 2, 2006) (finding mayor of mayor-council municipality lacked authority to regulate certain activities by executive order).

In very limited circumstances, a mayor has statutory authority to issue orders. Notably, for example, in Section 45-17-1, et seq., the mayor is granted authority to proclaim a civil emergency and issue "orders as are necessary for the protection of life and property." Miss. Code Ann. § 45-17-7(e). This statutory scheme does not expressly provide for an override by the board of aldermen.

Although we do not opine on whether the mayor has in fact issued an invalid or unlawful ordinance, we note that the Mississippi Supreme Court has held that "the unauthorized acts of one of its officials does not estop a municipality from acting in its governmental capacity." Suggs v. Town of Caledonia, 470 So. 2d 1055, 1057 (Miss. 1985).

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