Mississippi Advisory Opinions April 08, 2005: AGO 000016554 (April 8, 2005)

AGO 000016554.

Dear Mr. Mullins:

Attorney General Jim Hood has received your letter of request and assigned it to me for research and reply. Your letter states:

I write to your on the behalf of the City of Laurel and request an official opinion regarding certain provisions found in Section 23-15-309 (4) Miss. Code Ann. Specifically, one of the factors to be determined by the proper municipal executive committee in the referenced section is whether or not a candidate has been convicted of a felony. Excepted from the felony convictions are convictions of manslaughter and convictions related to the IRS Code or State tax laws, "unless such offense also involved misuse or abuse of his office or money coming into his hands by virtue of his office."

Please refer to your copy of the letter dated March 22, 2005 from the Democrat Municipal Executive Committee to the City Clerk. In that letter signed by the chairman, he found four incumbent councilpersons disqualified because of "misuse or abuse of his office or money coming into his hands by virtue of his office." The City Clerk's office has determined that no incumbent councilperson has been "convicted" of any felony charging "misuse or abuse of his office, etc."

Can the municipal executive committee disqualify or refuse to certify a candidate for "misuse or abuse of his office or money coming into his hands by virtue of his office" if there is no conviction related to this allegation? If the answer to the previous question is "no", may the City Clerk disregard this as a disqualification of those four candidates?

As primary elections are approaching and the need to have ballots printed is imminent, I am respectfully asking that your office render an opinion as soon as possible. Thank you for your immediate attention to this request.

In response to your first question, it is our understanding that the Laurel Democratic Executive Committee has already disqualified candidates on the basis of misuse or abuse of their offices or money coming into their hands by virtue of their offices. Pursuant to Mississippi Code Section 7-5-25, opinions of the Attorney General are issued on questions of law for the future guidance. Such an opinion can neither validate nor invalidate past action. However, for future guidance, a party executive committee has no authority to disqualify or refuse to certify a candidate upon its finding that the candidate misused or abused his office or money coming into his hands by virtue of his office unless there is a felony conviction relating to such alleged misconduct.

In response to your second question, we are of the opinion that a municipal clerk is without authority to disregard a disqualification of a candidate by a municipal party executive committee.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter Special Assistant Attorney General