Attorneys file for declaratory judgment in Miller school board case

Published 1:49 pm Wednesday, December 9, 2009

A complaint has been filed in Pearl River County Chancery Court seeking what is called a “declaratory judgment” on whether or not City Manager Harvey Miller, Jr., can simultaneously serve on the Picayune school board and as a Picayune city employee.

Miller is Picayune’s city manager.

The complaint was filed on Tuesday, Dec. 1, by school board attorney Gerald Patch and city council attorney Nathan Farmer on behalf of the Picayune City Council, the Picayune school board and Miller.

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The complaint, which, with exhibits, covers 34 pages, among other things, asks the judge to determine whether or not Miller has to resign one of the two posts.

The filing, as of Monday afternoon, had not been placed on a chancery court judge’s docket nor has it been set for a hearing.

The school board gave Patch approval to proceed with the filing on Sept. 8. The city council, on recommendation from Farmer and after a presentation by Patch, agreed to go along with the school board in its filing of a complaint.

At the time he garnered approval from the city council and the school board, Patch said if the ruling goes against the city, theschool board and Miller, it will not be appealed to the State Supreme Court, which would be the next step in an appeal process.

In an Aug. 23 statement to the Item Miller said, “No, sir! Absolutely no appeals!”

Specifically, the city, the school board and Miller are challenging a State Attorney General’s opinion, which said that it is the AG’s opinion that Miller is in violation of state law 37-2-203, which says that a city employee cannot also be a member of the school board.

However, citing a State Ethics Commission decision, Miller has maintained that he had an opinion saying he could serve in both positions at the same time, and Patch has maintained that the recent AG opinions it gave Miller, the city council and school board seem to contradict an AG opinion given in a November 1989 opinion in a case involving a person named Bush.

Patch maintains, based on the Bush opinion, that the prohibition in 37-2-203 does not apply to Miller because he is classified as a reappointment to the board and not being appointed for the first time.

Patch has maintained that based on that 1989 opinion, both he and the school board felt that Miller’s appointment was valid.

The issue was raised in the new council’s first regular session on July 7 by citizen Frank Egger, who unsuccessfully ran for mayor during the May-June city elections.

It was the first time the issue was brought out and discussed openly.

Miller maintained that he had in March 2004 — when he was named City of Picayune purchasing agent and was at the same time a school board member — obtained an Ethics Commission ruling that said there was no conflict of interest.

However, after requesting opinions from the State Attorney General’s office in July, shortly after Egger publicly raised the issue at the City Council meetings, the Attorney General’s opinions went against Miller.

Although it wasn’t brought out at the City Council meetings when the AG opinions were requested, the AG’s office earlier in March before the new council had taken office had told Miller it was their opinion that he was in violation of the law.

The Attorney General’s opinions issued in July and August said the State Ethics Committee opinion applied to a different law and said it did not apply to the law under consideration , 37-7-203.

The opinion, signed by Reese Partridge, an assistant attorney general, said “The prohibition at issue here is at Section 37-7-203 and not the ethics law.”

The complaint is a 34-page legal document and for the first time brings together the pertinent correspondence between the attorney general and city and school board officials.

In a July 8 fax to the AG’s office, Patch wrote: “We are urgently in need of an opinion from your office on this matter. Mr. Miller is now acting as the interim City Manager for the Çity of Picayune while a new City Manager is being sought.

“Also, in one of the eviction cases dealing with a 16th section lease that had been canceled by the school board, the tenant is raising the defense that the cancellation of his lease was void due to the fact that Mr. Miller was illegally on the school board and voted in favor of the cancellation.

“Furthermore, at the city council meeting last night (July 7) Mr. Egger requested that the city either fire Mr. Miller as an employee or that he resign from the school board.”

The reference to the 16th section school lease case involved Egger who for years has leased a piece of 16th section land from the school board near the old Picayune airport.

Egger is still in a court battle with the school board over a piece of 16th section land.

In a July 18 reply to Patch, Partridge told Patch that in a March telephone call with Miller and “others” that “we told” Miller that he appears to be in violation of Section 37-7-203, which would require that he resign one of the two positions.

Partridge also said that Miller could not be “grandfathered in” under a AG opinion cited by Patch, the November 1989 Bush opinion, because there “is no grandfather clause in ..37-2-203.”

“Therefore, he (Miller) cannot wait until the end of his term to address this situation and he cannot remain a trustee while staying employed with the city,” Partridge wrote Patch.

On July 23, Patch faxed Partridge that Miller was under the understanding that someone in the attorney general’s office said that he could be “grandfathered in,” and that he (Miller) was left with the impression that someone from the AG’s office would be getting back with him on the matter.

Patch asked Partridge to reconsider “the conclusion reached in your letter dated July 18…”

Patch also asked Partridge if the validity of school board decisions was at stake, like in the 16th section land case. He said that he was asking that question because one of the participants in a 16th section land eviction case was using that argument that the vote on eviction was illegal because Miller was unlawfully serving on the board and voted for the eviction.

In the last letter in the complaint, Exhibit J, between Patch and Asst. AG Partridge, dated Aug. 14, Partridge says that AG Opinion Bush (Nov. 8, 1989) does not apply to Miller because he is serving as both an employee of the city and a school board member, thus 37-2-203 applies. “Mr. Miller’s appointment to a second term on the board of trustees was invalid, therefore he must cease acting as a trustee,” Partridge wrote Patch.

Partridge said the Ethics Commission ruling did not apply to Miller and added that the AG’s office could give no opinion on whether the school board’s 16th section land school board eviction cases were compromised because Miller voted for them.

While the AG’s opinions are definitely stated and most public boards and bodies don’t go against them, the City Council and school board have chosen to challenge the AG opinions and ask a Chancery Court judge to decide.

Farmer advised the city council, in a meeting approving Patch’s plan to challenge the AG’s opinion, to go along and support the challenge. Farmer said he would help Patch prepare the complaint but would leave the bulk of the legal work to him.

Both the city council and school board voted unanimously to go ahead with the challenge.