Jackson Jambalaya

A recent Attorney General opinion makes it harder to hold public officials accountable when they tried to avoid the confirmation process.  One problem in Mississippi government is the use of interim appointments.  Mayors have repeatedly abused this practice when they fear a crony can't get confirmed.  Checks and balances are ignored while city councils and boards of aldermen have little remedy save going to court.  However, a law was passed earlier this year to put a stop to this good ole boy practice.

The usual example happens when a Mayor wants to appoint a friend to a plum job but knows he probably can't get the appointment confirmed by the city council.  Many times the interim appointments are not qualified to serve in their appointed positions (See Willie Bell). The Mayor will then attempt to make an end run around the entire confirmation process and call him an "interim" appointment but then never submits his nomination for confirmation.  It makes a mockery out of the entire concept of checks and balances.  Mayors Johnny Dupree, Chokwe Lumumba,  Les Fillingane, and Harvey Johnson all thought they were above the law as they loved to use interim appointments, checks and balances be damned.

The same shenanigans also take place with boards and commissions.  Members are allowed to serve long after their terms expired.   Millions of dollars are spent, hirings and firings take place, and votes are made by members who should have no vote but hey, it's Mississippi. 

The legislature passed a law earlier this year to put a stop to this political malpractice and hold politicians accountable for these abuses.  State Senator Josh Harkins sponsored SB #2587.  The bill passed both chambers and was signed by the Governor.  The short statute states:

  SECTION 1. (1) 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.

(2) If such position is not filled within one hundred eighty (180) days after the expiration of the term, no municipal funds may be expended to compensate any person serving in the position.

SECTION 2. This act shall take effect and be in force from and after July 1, 2016.

That is it.  There is no grandfather clause.  The money is cut off and the State Auditor can recover any  money paid to the interim employee after the 180 day term expires. 

The first challenge to this law took place in Bay St. Louis, where good ole boy politics has reigned supreme for quite some time in the Mayor's office.  The Mayor fired the building inspector six years ago and appointed a close friend who was not qualified to the job on an interim basis. The Seaside Echo reported in August:

A new state law has some city leaders questioning the legality of employment for Bay building department chief Charles Oliver, who has yet to be certified since taking over the department.

Mississippi Senate Bill 2587 became law on July 1. The law states that no person shall serve in an interim or hold-over capacity for longer than 180 days after the expiration of the term to which he or she was appointed in certain positions on municipal boards.

Although Oliver has been employed by the city for years, since he was never actually certified, he is considered the city's "interim" building official. Falgout read aloud an inter-office memo that he penned and sent to the mayor regarding the issue. According to the memo, dated July 7, "When (SB 2587) takes effect July , 2016, anyone holding over since December 31, 2015, will have been holding over more than 180 days and may not be paid any more.

"Per last night's city council meeting, you were once again made aware of Senate Bill 2587 that was passed into law," Falgout said in the memo. "Any compensation given to Charles Oliver, Bay St. Louis building official interim, from July 1, 2016 ... is a direct violation of this law." “The only reason we are reading this into the record is because you haven't responded,” Falgout told Fillingame Tuesday. “So could we get your response now?”

“Didn't respond or didn't respond the way you wanted?” Fillingame asked. “I think everybody has been aware of SB 2587. Obviously, you're too impatient to wait for the AG's opinion on this.”

Fillingame said that he has already reached out to the AG's office and had gotten "clear indications" that the new law does not relate to municipal employees. “They're not even sure that it relates to department heads and those appointments," Fillingame said. "The bill was somewhat erroneously worded. I'm gonna tell you, Mr. Falgout, just like I've told you every time that you've asked, I don't think this applies to any of our municipal employees. I think that your inner office memo is inappropriate on every level. I think that you have obviously targeted an employee that is a very valuable employee to the city.”

 Fillingame said Falgout's interpretation of SB 2587 was “very liberal” and “irresponsible,” accusing council members of targeting an employee for personal reasons. Rafferty agreed. Rest of post.

However, Mayor Fillingame went running to Jim Hood and the Attorney General bailed him out in a way never even imagined by those who drafted the bill.  Special Assistant Attorney General Phil Carter came back from the dead to resurrect Mr. Oliver's employment in an opinion issued on August 10.  Mr. Carter disagreed with the Mayor and said that the law did apply to department heads:

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.

Mr. Carter states that since the law didn't specify it was retroactive, then the 180-day clock did not begin to run until July 1, 2016.  Someone may have served as an interim appointee for two years when July 1, 2016 rolled around but Jim Hood's office says he gets six more months to serve.  Wait a second, Mr. Carter didn't say that but said he could serve for another eighteen months.  Read it and weep:

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.

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.

The opinion thus means that an interim can serve for another year and then until the end of 2017.  Mr. Carter next tries to mitigate the damage he knows he just caused:

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.

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.

Kingfish note: Have you ever seen a parent pitifully beg their spoiled brats to behave in public? "Please be nice.  Please.  You shouldn't do that.  Please stop.  Please.".  That is Mr. Carter.