Board Holdovers and Mississippi Code Ann. §21-15-41
By Jeff Wagner, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C
I was recently asked whether Miss. Code Ann. §21-15-41 relating to appointed municipal officials remaining in office after the expiration of their terms applied to airport authority commissioners. The answer is yes to some, and no to others.
For those of you not familiar with the statute, Miss. Code Ann §21-15-41 is a relatively new statute, first enacted in 2016. As originally enacted, the statute provided that no person could serve in an appointed municipal position “that is required by law to be filled by appointment of the governing body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” for more than 180 days after his or her term expired and that no municipal funds could be used after that time to compensate the official (presumably to mean, salary, per diem and travel expenses) after that time. However, in a late session amendment to House Bill 51 addressing municipal parking fines, the Legislature amended the statute to further provide that “any action or vote taken by such person after the one hundred eighty-day period shall be invalid and without effect.” That means any decision made by an airport authority board that has a hold-over serving past 180 days could be attacked as improperly adopted, potentially invalidating contracts, making expenditures illegal and rendering ordinances and rules of no effect.
All airport authorities in Mississippi are created under the Mississippi Airport Authorities Law, Miss. Code Ann. §61-3-1 et seq. Section 61-3-5 of the Mississippi Airport Authorities Law authorizes any “municipality” to create an airport authority, and §61-3-3 of the Mississippi Airport Authorities law defines a “municipality” to include “any county, supervisors district or supervisors districts, or all that portion of the county lying outside the territorial boundaries of any named city, town or village, and a city, town and village of this state or any state-supported institution of higher learning or any public community or junior college.” However, Miss. Code Ann. §21-15-41 is located in Title 21 of the Mississippi Code, which applies only to municipal corporations (cities, towns and villages) and does not apply to “any county, supervisors district or supervisors districts….state-supported institution of higher learning or any public community or junior college.”
So, as used in Miss. Code Ann. §21-15-41, an airport authority itself is not a municipality, but may have been created by a city, town or village, making its Commissioners subject to Miss. Code Ann. §21-15-41. However, to the extent an airport authority has been created by a county, a state institution of higher learning, a junior college or other political subdivision which is not a “city, town or village,” Miss. Code Ann. §21-15-41 would not apply. To make matters even more confusing, some airport authorities are regional authorities created by a combination of cities, counties and other political subdivisions, making only those commissioners appointed by a city, town or village subject to Miss. Code Ann. §21-15-41.
As always, I am happy to try to answer any questions any members of the Mississippi Airports Association may have about the application of this statute.
 I would expect if there are ever any legal proceedings related to this provision, that someone could raise the question whether the amendment violated Section 60 of the Mississippi Constitution of 1890 which provides that “no bill shall be so amended in its passage through either house as to change its original purpose.”
Jeff Wagner is a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. in Jackson, Mississippi, and may be contacted at
(601) 973-3610 or by email at [email protected] with any questions.