Mississippi Advisory Opinions March 25, 2005: AGO 000016535 (March 25, 2005)

AGO 000016535.

Dear Mr. Blakely:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. Your hand-delivered request asks the following questions:

I Harold Blakely, Chairman of Municipal Democratic Executive Committee request the Attorney General and their counsels to provide their legal opinion with regard to state and federal election law related to the candidates and municipal executive committees qualifications, etc.

Attached to the handwritten request above were two pages of handwritten notes in which you have provided brief descriptions of several candidates and members of party executive committees as well as the following notation:

P.S. I request the State Attorney General legal opinion with regard to candidates resigned from their county election office, etc., before qualifying for municipal office.

In an effort to increase clarity, I have summarized and renumbered the individuals named on your two pages of notes as follows.

Fact Situation 1. The incumbent mayor of Laurel has filed a candidate petition to qualify as an independent candidate for mayor of Laurel, but is also a member of the county Democratic Executive Committee. Given the provisions of Miss. Code Ann. Sections 23-15-217 and 23-15-263 (1972), can she be a candidate for mayor?

Miss. Code Ann. Section 7-5-25 (1972) authorizes the Attorney General to provide legal opinions "when requested in writing, upon any question of law relating to their respective offices." Since this candidate is an independent candidate and in your capacity as chairman of the municipal executive committee you exercise no authority over independent candidates, we cannot issue a legal opinion on this part of your request.

However, for general information purposes, as we discussed in your office visit on Friday, March 11, 2005, at approximately 2:30 pm, Section 23-15-217, in pertinent part, provides as follows:

(2) A member of a county executive committee shall be automatically disqualified to serve on the county executive committee, and shall be considered to have resigned therefrom, upon his qualification as a candidate for any elective office. The provisions of this subsection shall not apply to a member of a county executive committee who qualifies as a candidate for a municipal elective office.

The provisions of Section 23-15-217 relate, inter alia, to election commissioners as candidates for public office and is not germane to the fact situation you have described, which relates to a party executive committee member. Accordingly, there is no provision in state law which would disqualify this candidate based on her membership on the county executive committee.

Fact Situation 2. A member of the municipal executive committee signed an independent candidate's petition. Is this a conflict of interest?

There is no Mississippi statute which prohibits a member of an executive committee from signing an independent candidate's petition. No state statute would invalidate the signature due to membership on the municipal executive committee and no state statute requires removal of an executive committee member for signing an independent candidate petition.

Fact Situation 3. An incumbent city councilman is a candidate for reelection as a Democrat and is a member of the county executive committee. Under Sections 23-15-217 and 23-15-263, must he resign from the county executive committee? Is he disqualified form running based on his membership on the county executive committee? This candidate is also employed as a bus driver by "Friends of Children of Mississippi, Inc.", which you state is a part of the "Head Start" program. Is this a violation of the Hatch Act? Should the executive committee disqualify this candidate due to a violation of the Hatch Act?

No state statute, including Sections 23-15-217 and 23-15-263, would require the resignation of this candidate from the county executive committee. Nor does any state statute disqualify this candidate due to his membership on the county executive committee.

With regard to the Hatch Act, this office is authorized to issue opinions on matters of state law only. We recommend that any questions regarding the applicability of the Hatch Act be directed to the office charged with administering the Hatch Act, the U. S. Office of Special Counsel, which maintains a toll free number, 1-800-854-2824. Information regarding the Hatch Act is also available from their website, www.osc.gov.

Because the U. S. Office of Special Counsel administers the Hatch Act, an executive committee has no authority to disqualify a candidate for possible Hatch Act violations.

Based on the facts you have provided in your handwritten notes, we know of no state statute which would prohibit this candidate from running for municipal office.

Fact Situation 4. May an incumbent county supervisor be a candidate for mayor?

No state statute, including those you have cited, would disqualify a county supervisor from being a candidate for mayor. However, if elected, the supervisor could not serve as both mayor and county supervisor, as to do so would be a violation of the separation of powers doctrine in the Mississippi Constitution of 1890. Pursuant to Section 1 and 2 of the Constitution, upon entering into the office of Mayor, he would automatically vacate his prior office of Supervisor.

Fact Situation 5. A Democratic candidate for city council is employed by "Friends of Children of Mississippi, Inc.", which you state is a part of the "Head Start" program. Is this a violation of the Hatch Act or state law?

See the response to fact situation 3.

Fact Situation 6. A Democratic candidate for municipal executive committee is employed by the Laurel Housing Authority as an office executive. Is this a violation of the Hatch Act or state law?

See the response to fact situation 3.

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Reese Partridge Special Assistant Attorney General