WALTER JONES v. THE CITY OF CANTON, MISSISSIPPI, FRED ESCO, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ALDERMAN, LES A. PENN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ALDERMAN, DAPHNE JOHNSON SIMS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS ALDERWOMAN, ERIC GILKEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ALDERMAN, AND ANDREW GRANT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ALDERMAN
NO. 2018-CC-00932-SCT
IN THE SUPREME COURT OF MISSISSIPPI
09/26/2019
DATE OF JUDGMENT: 06/05/2018; TRIAL JUDGE: HON. STEVE S. RATCLIFF, III; TRIAL COURT ATTORNEYS: JOHN W. CHRISTOPHER, KIMBERLY BANKS, PIETER TEEUWISSEN; COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT; ATTORNEY FOR APPELLANT: JOHN W. CHRISTOPHER; ATTORNEYS FOR APPELLEES: PIETER TEEUWISSEN, KIMBERLY BANKS; NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES; DISPOSITION: REVERSED AND RENDERED - 09/26/2019
BEFORE KING, P.J., MAXWELL AND GRIFFIS, JJ.
¶1. Walter Jones appeals the order of the Circuit Court of Madison County affirming his removal as trustee of the Canton Public School District (CPSD) by the Board of Aldermen (the Board) of the City of Canton (the City). Jones argues that the Board lacked the authority to remove him as a public official. Finding that the Board‘s actions were prohibited by the Mississippi Constitution, we agree.
FACTS AND PROCEDURAL HISTORY
¶2. Jones served as a trustee of the CPSD, appointed by the Board under
¶3. On February 20, 2018, William Truly, mayor of the City of Canton, and the Board met at Canton City Hall for a duly called meeting of the governing authorities. Truly determined the Board had a quorum, with only one alderman not in attendance. During the meeting, the Board discussed concerns involving CPSD. The meeting‘s minutes reflect the following:
There came on for consideration before the Board the matter of a school board member appointment. Alderwoman Daphne Sims expressed concern that the City was supposed to be kept abreast by the School Board members of school issues, and no one has been before the City Board to keep them abreast of the issues of the District. The Mayor addressed whether it was legal for an employee of the School District who sits on the Board of Aldermen to vote on the issues of the District. When requested, Attorney Banks advised the Board on the statutory conditions to remove a Board member, per the Attorney General Opinions on the matter. Alderwoman Sims made the motion to remove Walter Jones, whose term will expire in 2021, for cause for being unwilling to serve and unwilling to keep the City abreast of what is going on in the school system, and replace him with Timothy Scott. Alderman Penn seconded the motion.
A majority of the aldermen voted in favor of the motion to remove Jones, and the mayor declared that the motion was carried by majority vote.
¶4. While the minutes reflect no authority for removal, Section 2-55 of the City‘s Code of Ordinances states that the Board shall remove “[e]very officer or employee who shall refuse or willfully neglect to perform the duties imposed upon him by law, this Code or ordinance . . . or for any satisfactory cause.”
¶5. CPSD and Jones filed a bill of exceptions in the Madison County Circuit Court, challenging the decision of the Board to remove Jones as a trustee of CPSD. The circuit court affirmed the action of the Board.
¶6. Jones now appeals, raising the issues of whether the Board had the legal authority to remove a school-district trustee and whether the circuit court committed reversible error by affirming.
STANDARD OF REVIEW
¶7. “The bill of exceptions serves as the record on the appeal of a decision by a municipal authority.” McAdams v. Perkins, 204 So. 3d 1257, 1261 (Miss. 2016) (citing Stewart v. City of Pascagoula, 206 So. 2d 325, 328 (Miss. 1968), superseded by rule as stated in City of Jackson v. Allen, 242 So. 3d 8 (Miss. 2018)). “[D]ecisions by the governing authorities of a municipality are subject to limited review.” Id. (citing McWaters v. City of Biloxi, 591 So. 2d 824, 827 (Miss. 1991)). A decision will be overturned “only if the decision (1) was beyond its scope or power; (2) violated the constitutional or statutory rights of the aggrieved party; (3) was not supported by substantial evidence; or (4) was arbitrary or capricious.” Id. (citing Baymeadows, LLC v. City of Ridgeland, 131 So. 3d 1156, 1169 (Miss. 2014)).
ANALYSIS
¶8. The parties agree that no statutory authority exists to grant a board of aldermen the power to remove a school-board trustee from such position. The relevant inquiry is whether a board of aldermen requires such authority. The circuit court decided no; in the absence of direct constitutional or legislative direction, a local government may rely on
¶9. The Legislature provides “for the establishment, maintenance, and support of free public schools upon such conditions
¶10. The Mississippi Constitution provides that “[a]ll public officers, for wilful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment by a grand jury; and, upon conviction, shall be removed from office, and otherwise punished as may be prescribed by law.”
¶11. Even so, the attorney general‘s office has repeatedly asserted the rule that, “[o]nce appointed, a trustee of a municipal separate school district serves for a term of five years and can only be removed pursuant to a specific statutory provision.” Miss. Att‘y Gen. Op., No. 2001-0239, 2001 WL 523513, Brahan, at *1 (Apr. 27, 2001). Regarding appointments to terms of office on a local board, “[t]he statute under which the appointment was made might have provision for removal for cause. Further, general statutes provide for removal of officers in the case of conviction of a crime or in cases where the public officer is found to be of unsound mind.” Miss. Att‘y Gen. Op., No. 2000-0041, 2000 WL 300228, Green, at *1 (Feb. 11, 2000). See also Miss. Att‘y Gen. Op., No. 1999-0638, 1999 WL 1333436, Walters, at *1 (Dec. 3, 1999); Miss. Att‘y Gen. Op., No. 93-0735, 1993 WL 425327, Raulston, at *1 (Sep. 30, 1993); Miss. Att‘y Gen. Op., 1985 WL 193063, Finch, at *1 (Oct. 24, 1985).
¶12. This Court has relied on
¶13. The Court also found that “[S]ection 175 of the Constitution of 1890 of the state provides the exclusive mode, where the removal is sought on a charge of willful
¶14. This Court has not ruled on the matter of a school-board trustee removal, but Jones, a school-board trustee, is a public officer like the appointed county-health officer in Matthews and the elected city marshal in Lizano. Like Matthews and Lizano, Jones was removed from his position for alleged neglect of duties.
¶15. The City argues, however, that because Mississippi law is silent on removal of school-board trustees and because removal of school-board trustees is not expressly prohibited, the Board was free to exercise authority to remove Jones from office. The City uses
¶16.
The governing authorities of every municipality of this state shall have the care, management and control of the municipal affairs and its property and finances. In addition to those powers granted by specific provisions of general law, the governing authorities of municipalities shall have the power to adopt any orders, resolutions or ordinances with respect to such municipal affairs, property and finances which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi, and shall likewise have the power to alter, modify and repeal such orders, resolutions or ordinances.
¶18. Before 1992, a city could “only exercise such powers as are delegated by the Legislature” and had “no power except that delegated to it by the state,” such that its powers were “to be construed most strongly against an asserted right not clearly given and [could
not] be extended by mere implication . . . .” Hattiesburg Firefighters v. City of Hattiesburg, 263 So. 2d 767, 769 (Miss. 1972). City ordinances were struck down if the Legislature had not given the City express authority to enact the ordinance. See Videophile, Inc. v. City of Hattiesburg, 601 F. Supp. 552, 553-54 (S.D. Miss 1985), superseded by statute as stated in J & B Entm‘t, Inc. v. City of Jackson, Miss., 152 F.3d 362 (5th Cir. 1998). In 1992, the Legislature increased the power of municipalities by amending
The governing authorities of every municipality of this state shall have the care, management and control of the municipal affairs and its property and finances. In addition to those powers granted by specific provisions of general law, the governing authorities of municipalities shall have the power to adopt any orders, resolutions or ordinances with respect to such municipal affairs . . . which are not inconsistent with [Mississippi law.]
¶19. The City draws our attention to Section 2-49 of the Canton Code of Ordinances, which states that every officer, unless otherwise specifically provided, shall serve at the pleasure of the mayor and the alderman, and to Section 2-55, which provides that every officer who shall willfully neglect to perform the duties imposed upon him, or for any satisfactory cause, shall be removed from office. In light of Matthews and Lizano, Section 2-55 of the Canton Code of Ordinances violates
¶20. Additionally, the record shows no evidence of Jones‘s being given due process in his removal. Procedural due process requires that a person who is subject to adverse government action receive notice of the charges against them, an explanation of the employer‘s evidence, and an opportunity to be heard. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). In another case regarding an appointed public official‘s removal from office, the Court found that
[T]he authority conferred on the board of health to remove the factory inspector can be exercised only upon “charges, notice, and an opportunity to be heard.” While the board of health under the statute in question has the authority to remove the factory inspector for cause, this cause must be a good cause, and not a mere arbitrary exercise of the authority thus conferred. The factory inspector
must be informed of the nature of the charges preferred against him, and an opportunity must[] be afforded him to be heard; in other words, he is entitled to his day in court.
State v. McDowell, 111 Miss. 596, 71 So. 867, 868 (1916). The Board‘s decision was made without notice or hearing, leaving Jones to the whims of the Board in violation of Jones‘s due-process rights.
CONCLUSION
¶21. Because the Board‘s authority was based on a city ordinance inconsistent with the Mississippi Constitution and because the Board‘s action violated Jones‘s right to due process, we reverse and render the circuit court‘s decision to affirm the Board‘s removal of Jones as school-board trustee.
¶22. REVERSED AND RENDERED.
RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.