Rodney Lamey v. Board of Supervisors of Jackson County
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-00815-COA
RODNEY LAMEY
APPELLANT
v.
BOARD OF SUPERVISORS OF JACKSON
COUNTY
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
01/28/2009
HON. KATHY KING JACKSON
JACKSON COUNTY CIRCUIT COURT
WILLIAM MICHAEL KULICK
KATHERINE B. PARKER
CIVIL - OTHER
AFFIRMED THE DECISION OF THE
BOARD OF SUPERVISORS TO REMOVE
RODNEY LAMEY FROM HIS POSITION AS
COMMISSIONER
AFFIRMED - 11/02/2010
BEFORE KING, C.J., ROBERTS AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
Rodney Lamey appeals the judgment of the Circuit Court of Jackson County that
upheld the Jackson County Board of Supervisors’ (Board) decision that Lamey no longer
possessed the qualifications to continue as a commissioner of the West Jackson County
Utility District (District). After careful review of the record, we find substantial evidence to
support the Board’s decision, which was affirmed by the circuit court. Accordingly, we
affirm.
FACTS
¶2.
Lamey served as an appointed commissioner of the District, and at a hearing held on
April 7, 2008, the Board found that Lamey no longer possessed the qualifications to hold the
office of commissioner. Specifically, the Board determined that Lamey no longer resided
within the district, as required of the District’s commissioner appointees under Mississippi
Code Annotated section 19-5-171 (Supp. 2009). During the hearing, Lamey appeared before
the Board and explained that he temporarily moved out of his Jackson County residence
during the remodeling of his home.
He further explained that during the temporary
relocation, Hurricane Katrina destroyed the residence. Unfortunately, his new residence sat
approximately one-hundred feet outside of the Jackson County line and no longer satisfied
the county residency requirements of his appointment. Although Lamey’s new residence fell
within the parameters of Harrison County, he still received water services from the District.
¶3.
After the hearing, the Board issued a resolution stating that Lamey no longer met the
residency requirements necessary to serve as a commissioner of the District and that Lamey
had, therefore, vacated his office. Lamey submitted a bill of exceptions to the president of
the Board, and then he filed the bill of exceptions and an appeal in the Jackson County
Circuit Court.
Lamey argued that the Board lacked the legal authority to remove a
commissioner from office. The circuit court affirmed the Board’s decision to remove Lamey
from his office as commissioner. Lamey now appeals, arguing that the circuit court had
erroneously interpreted Mississippi Code Annotated section 19-5-167 (Rev. 2003), and he
asserts that the court and Board provided erroneous factual determinations regarding his
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removal from his position as commissioner.
STANDARD OF REVIEW
¶4.
This Court adheres to a limited review of decisions rendered by an executive body.
Precedent requires that the decision of an administrative agency not be disturbed on appeal
“absent a finding that it was not supported by substantial evidence, was arbitrary or
capricious, was beyond the power of the administrative agency to make, or violated some
statutory or constitutional right of the complaining party.” Miss. Waste of Hancock County,
Inc. v. Bd. of Sup'rs of Hancock County, 818 So. 2d 326, 330 (¶6) (Miss. 2001); Uniform
Rule of Circuit and County Court 5.03. We also acknowledge that “[t]here is a rebuttable
presumption in favor of the agency's decision[,] and the burden of proving to the contrary is
on the challenging party.” Id. Reflecting deference to the agency as the fact-finder, this
Court “must not reweigh the facts of the case or insert its judgment for that of the agency.”
Lewis v. Miss. Employment Sec. Comm'n, 767 So. 2d 1029, 1030-31 (¶9) (Miss. Ct. App.
2000).
DISCUSSION
I.
¶5.
Whether Mississippi Code Annotated section 19-5-167 was
erroneously interpreted.
Lamey argues that the language of section 19-5-167 clearly mandates that after the
creation of a county water district, the Board possesses no authority to interfere with the
business of the district except to appoint commissioners upon the occurrence of a vacancy.
¶6.
Section 19-5-167 states, in pertinent part, that:
Any vacancy occurring on a board of commissioners shall be filled by the
board of supervisors at any regular meeting of the board of supervisors, and
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the board of supervisors shall have the authority to fill all unexpired terms of
any commissioner or commissioners. Notwithstanding the appointive
authority herein granted to the board of supervisors, its legal and actual
responsibilities, authority and function, subsequent to the creation of any
district, shall be specifically limited to the appointive function and
responsibilities outlined in [s]ections 19-5-179, 19-5-189 and 19-5-191. The
operation, management, abolition or dissolution of such district, and all other
matters in connection therewith, shall be vested solely and only in the board
of commissioners to the specific exclusion of the board of supervisors, and the
abolition, dissolution or termination of any district shall be accomplished only
by unanimous resolution of the board of commissioners.
Lamey asserts that the statute gives the District’s commissioners authority over all matters
pertaining to the operation and management of the District. He argues that the statute limits
the authority of the Board and prohibits its interference with the internal workings of the
District. Lamey asserts this limitation prevents the Board from determining if a vacancy
occurred. Lamey submits that the statutory language supports his argument that only the
District, not the Board, possessed the authority to determine if a vacancy occurred.
¶7.
The Board relies upon Mississippi Code Annotated section 25-1-59 (Rev. 2006) in
ascertaining that since Lamey moved out of the boundaries of Jackson County, then he
thereby vacated his office as commissioner. The Board found that the vacancy required
Board action to fill the vacancy. Section 25-1-59 states that:
If any state, district, county, county district, or municipal officer during the
term of his office shall remove out of the state, district, county, or municipality
for which he was elected or appointed, such office shall thereby become vacant
and the vacancy be supplied as by law directed. If any person who has been
or shall be a collector or holder of public money is elected to either branch of
the [L]egislature or to any office of profit or trust, and shall not have accounted
for and paid into the treasury all sums for which he may be accountable on or
before the day of the meeting of the [L]egislature to which he shall be chosen
or the time for the commencement of his term of office, the seat of such person
in the [L]egislature or the office to which he was elected shall be forthwith
vacated thereby.
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¶8.
The Board concedes that the statute omits language specifying regarding who makes
the factual determination as to the existence of a vacancy. However, the Board points to
Mississippi Attorney General Opinion 2008-00231, 2008 WL 2687396, The Honorable
Edward Seals (June 13, 2008), in which the Mississippi Attorney General found that the
question of whether a school board member had vacated his office by his removal from the
district should be determined by the appointing authority, and not the school board.
¶9.
However, Lamey argues that since no ambiguity exists in the language of section 19-
5-167, nothing requires the Board to look to section 25-1-59 to determine whether a
commissioner lacks residency qualifications to hold his office. He also argues that the
decision of when a vacancy occurs constitutes an internal matter that fundamentally pertains
to the District’s operation; thus, it falls under the authority of the commissioners, not the
Board.
¶10.
We note that the circuit judge states in her opinion that the attorney general takes the
position that the appointive authority must determine whether a person has “removed”
himself from the district, and if by removing from the district, he thereby created a vacancy.
See Miss. Atty. Gen. Op. 2008-00231, 2008 WL 2687396, Seals. As a result, the circuit
court held that the action of the Board in declaring a vacancy based on Lamey’s removal
from the district constituted appropriate action by the Board. Additionally, in Mississippi
Attorney General Opinion 2006-00377, 2006 WL 2789807, Mayor Billy Skellie (Aug. 18,
2006), the attorney general stated that whether an official “removed” himself out of the
jurisdiction for which he was elected or appointed consists of a question of fact. The
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attorney general further established that “[t]he municipal governing board has the
responsibility to make the factual determination as to whether an officer has abandoned the
municipality as his place of residence or whether he is only temporarily away from his
residence.” Miss. Atty. Gen. Op. 94-0149, 1994 WL 175731, Alderman Brian Barcellona
(April 13, 1994). We agree with the circuit court that the Board possessed the responsibility
to determine factually whether an individual removed himself or herself from the district of
appointment. If the Board determines that an individual indeed voluntarily removed from
the district, then a vacancy necessarily occurred by operation of law according to statutory
appointment requirements. Therefore, we agree with the circuit court’s judgment finding that
substantial evidence exists to support the Board’s decision, and we also find that the Board’s
decision was not arbitrary or capricious. See URCCC 5.03. This issue is without merit.
II.
¶11.
Whether the circuit court’s factual determination that Lamey had
vacated his office as commissioner was erroneous.
Lamey next argues that the circuit court erred in its factual finding concluding that he
had removed himself from the district. He cites Mississippi Code Annotated section 19-5177(k) (Rev. 2003), which authorizes the District to “extend its services to areas beyond but
within one (1) mile of the boundaries of such district.” Although he admits that he located
his residence outside of Jackson County, Lamey asserts that he still lived within this one-mile
zone authorized by the statute. In support of his position, he explained that he received his
water services from the District. However, we note that the statutory language authorizes the
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District to extend its services, not its legal boundaries. 1 As a result, section 19-5-177 fails
to extend the legal boundaries of the District to include Lamey’s residence in Harrison
County, a county different from the county of appointment.
¶12.
Lamey also claims that section 19-5-171(1) supports his argument that he still
possessed qualifications to serve as a commissioner, noting that this section provides that
“the owner of land or the conductor of a business situated within the district . . . shall be
eligible to hold the office of commissioner.” Miss. Code Ann. § 19-5-171(1) (Rev. 2003).
Lamey disputes the factual findings of the Board in claiming that he owns and pays taxes for
his homestead in Jackson County, as well as conducts business primarily within the general
vicinity of the District’s boundaries. As a result, he asserts that despite the new Harrison
County residence, no removal from Jackson County or the District occurred. Therefore, he
argues no vacancy exists.
¶13.
We note that in Mississippi Public Service Commission v. Merchants Truck Line, Inc.,
598 So. 2d 778, 782 (Miss. 1992), the Mississippi Supreme Court stated: “So long as
substantial evidence exists, an agency's fact finding must be allowed to stand ‘even though
there might be room for disagreement on that issue.’” With this limited standard in mind,
upon review of the record, we agree with the circuit court that substantial evidence exists in
support of the Board’s factual determination that Lamey no longer resides within the
boundaries of the District; thus, a vacancy exists. We also agree with the circuit court that
the Board’s decision finding that Lamey removed himself from the District was not arbitrary
1
Section 19-5-171 states that appointments to the District must come from the
residents of the county in which the District is located.
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or capricious. See URCCC 5.03. We, therefore, affirm the circuit court’s judgment.
¶14. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND
ROBERTS, JJ., CONCUR. MAXWELL, J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION. IRVING, J., NOT PARTICIPATING.
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