Mississippi Advisory Opinions July 01, 2005: AGO 000016657 (July 1, 2005)

AGO 000016657.

Dear Mr. Faneca:

Attorney General Jim Hood received your request for an Official Opinion and assigned it to me for research and response. In your letter of request, you state:

Our firm represents George Payne, Jr., Sheriff of Harrison County, Mississippi. As a result of municipal elections, Sheriff Payne is confronted with the situation where current or prospective part-time employees desire to serve on the City Council for municipalities located within Harrison County, Mississippi. Their employment with the Harrison County Sheriff's Office is or will be in an administrative capacity and they will not be state certified law enforcement officers or have law enforcement or other powers outlined in Miss. Code Ann. Sec. 19-25-21 (1972). Additionally, the acts or powers of these employees will not be of a substantial policy-making character or "at the core" of the power belonging to the executive branch of government.

Based on this background, Sheriff George Payne requests an official opinion as to the following question:

Does Article 1 Section 2 of the Mississippi Constitution prohibit someone from simultaneously being employed in a non-law enforcement administrative capacity for the Sheriff's Office and on the City Council for a municipality in the same county?

Your assistance and quick response to this question will be greatly appreciated as the employees plan to take office in early July.

In response, Sections 1 and 2 of the Mississippi Constitution of 1890 provide that the powers of the government are divided among the legislative, judicial and executive departments and no person in one department can exercise power belonging to another department. These provisions have been interpreted by the Mississippi Supreme Court as applying to "core" powers, which relate to acts at the upper level of governmental affairs and have a substantial policy-making character. Dye v. State, 507 So. 2d 332 (Miss. 1987).

Consistent with the Court's interpretation, this office has previously opined that deputy sheriff exercises core powers of the executive department and an alderman exercises core powers of the legislative department. Consequently, a person may not serve in these capacities simultaneously without violating the constitutional prohibition. MS AG Op., Miller (Jan. 21, 2005). In contrast, this office has previously opined that a process server (with no law enforcement authority) employed by the sheriff's office, can serve as an alderman without violating the separation of powers doctrine. MS AG Op., Walker (Nov. 2, 2001).

Since the employees that you describe do not exercise core powers as a part of their employment with the sheriff's office, they may serve on the city councils of municipalities located within Harrison County without violating the constitutional prohibitions cited herein. The persons addressed herein may wish to seek guidance from the Mississippi Ethics Commission in the event that there are any current or prospective agreements between the municipalities and Harrison County or the sheriff's office, which may give rise to a prohibited conflict of interest under Section 25-4-101 et seq., of the Mississippi Code of 1972.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

By:

Charles T. Rubisoff

Special Assistant Attorney General