Jackson Jambalaya

Mayors will no longer be able to appoint their friends without getting them confirmed when it's required.  State Senator Josh Harkins was able to get bills passed that stopped this abuse by limiting interim appointments to serving no more than 180 days without confirmation.  However, the A.G.'s office gutted these bills with its interpretations (or re-imaginings as some called it.). 

 Mr. Harkins decided he had enough of the A.G.'s rulings  and got a bill signed into law  last week that really cracks down on this abuse of power.  Mayors will now have to get their appointments confirmed within 90 days and if they decided to thumb their noses at the law, no problem.  HB #1114 Section (2) also gives the registered voters of that city the right to enforce the law in Chancery court and recover their attorney's fees.  

One problem in Mississippi government is the use of interim appointments.  Mayors have repeatedly abused this practice when they fear one of their good ole boys can't get confirmed.  Checks and balances are ignored. Councilmen and alderwomen have little remedy save going to court at their own expense.  Thus so-called "interim appointments" are in reality unconfirmed permanent appointments as such appointees would at times serve for years. 

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 Fillingame, and Harvey Johnson all thought they were above the law as they loved to use interim appointments, checks and balances be damned.

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

Mr. Harkins got legislation passed in the 2016 and 2017 legislative sessions that would place a 180 day limit on how long an interim or hold-over employee could serve if his position required a confirmation vote.  The 2017 bill applied the new restriction to boards and commissions as well.  For example, there was one commissioner serving on the JMAA board whose term had been expired for over two years.  The new laws were simply an attempt to get Mayors and their respective legislative branches to do their jobs. .  It even said the limitation was retroactive.  However, the A.G. still said that the clock didn't begin to run until July 1 and thus the 180-day limit wouldn't expire until January 1, 2018.

The Rankin County State Senator didn't take this setback lying down but instead said, fine,  if you want to go the hard way, we can go the hard way.  He filed a bill that would have tightened the law.  It passed the Senate but died in committee at the House.  Mr. Harkins found a bill that was still alive and had the necessary code sections and attached the dead bill's language to the live one. The bill  passed and was signed into law Friday. Check out Section (2) of HB #1114:

SECTION 2. Section 21-15-41, Mississippi Code of 1972, is amended as follows:

21-15-41. (1) No person shall serve in an interim or hold-over capacity for longer than * * * ninety (90) days 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. If such position is not filled within * * * ninety (90) days after the expiration of the position's term, or within * * * ninety (90) days after the date of appointment if an interim appointment, the hold-over service or interim appointment shall terminate and no municipal funds may thereafter be expended to compensate the person serving in the position. Further, any action or vote taken by such person after the * * * ninety-day period shall be invalid and without effect. If a council or board of aldermen rejects, or otherwise fails to confirm, an individual submitted by the mayor for appointment, the mayor may not resubmit or reappoint the same individual for that position during the remainder of the mayor's current term in office.

(2) It is the intent of the Legislature that the provisions of this section shall apply * * * to all appointees serving in a hold-over or interim capacity on the effective date of this act * * *. For such appointees, the * * * limitation period * * * for serving in a hold-over or interim capacity shall be no longer than ninety (90) days from July 1, 2018.

(3) Any registered voter who resides in the municipality may file all objections to any matters relating to an alleged violation of this section in the chancery court of the county where the municipality is located. The chancery court is authorized to adjudicate and determine relief as may be proper. The court shall award reasonable attorney's fees and costs to the prevailing party. Copy of bill.

 Forget 180 day's.  A Mayor now has 90 days to get his act together and get some employees confirmed.  The same rule will apply to any one serving on a board and commission.  However, and this is the fun part, the Mayors will no longer be able to thumb their noses at their councilwomen and aldermen and dare them to run to the State Auditor or Attorney General.  State Senator Harkins made it possible for voters of a municipality to enforce the law in chancery court.  If the voter wins, then the city must pay the legal fees.  No more waiting for cavalry that never comes or breaking the bank paying for a lawyer.

Let the squawking begin.*


Kingfish note: Here is an explanation of the history of this legislation.

 Mr. Harkins sponsored a bill in 2016 that attempted to put a stop to these shenanigans.  SB #2587 stated:

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.

 However, the Mayor of Bay St. Louis had a pal who had served as an "interim" appointment for six years.  Thus Mayor Les Fillingane squawked to the Attorney General and his office answered with an opinion that gutted the law.  It said that the law couldn't take effect until the beginning of the next Mayor's term in July 2017.  The 180-day clock wouldn't start ticking until that date and thus would not apply until January 1, 2018.  The law said nothing about grandfather clauses or the terms of Mayors but one Phil Carter applied some slick rules of interpretation that turned the effective date of the law on its head.

The State Senator gritted his teeth and came back in the 2017 Legislative session with a bill that would have closed the loopholes created by the A.G.  His bill died in the House but he managed to get his bill attached to another that was passed.  HB #51 stated:

21-15-41. (1) No person shall serve in an interim or hold-over capacity for longer than one hundred eighty (180) days * * * 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 * * *. * * * If such position is not filled within one hundred eighty (180) days after the expiration of the position's term, or within one hundred eighty (180) days after the date of appointment if an interim appointment, the hold-over service or interim appointment shall terminate and no municipal funds may thereafter be expended to compensate * * * the person serving in the position. Further, any action or vote taken by such person after the one-hundred-eighty-day period shall be invalid and without effect. If a council or board of aldermen rejects, or otherwise fails to confirm, an individual submitted by the mayor for appointment, the mayor may not resubmit or reappoint the same individual for that position during the remainder of the mayor's current term in office. Copy of bill.

 The law also deals with boards and commissions.  Any votes taken by board members more than 180 days after their terms expire are null and void.  No more sitting around on the JMAA Board of Commissioners and voting on budgets two years after the term expired.

The second section  makes the law retroactive so no funds can be used to pay the salaries of any interim appointments that require a confirmation vote

(2) It is the intent of the Legislature that the provisions of this section shall apply retroactively to all appointees serving in a hold-over or interim capacity on the effective date of this act and for such appointees, the one hundred eighty-day limitation period shall commence to run on the effective date of this act.

However, the Attorney General's office would not be deterred and said that the clock didn't start ticking until the Mayor's new term began (AG Opinion #00173).

*One bit of squawking took place at the Jackson Municipal Airport Authority Board of Commissioners.  To say they were upset by the new bill last year was putting it mildly.  They went running to the A.G. but to that office's credit, it did state that the new law applied to the JMAA Board.