Mississippi Advisory Opinions December 21, 2007: AGO 2007-00654 (December 21, 2007)

Advisory Opinion Text

Gene Barton, Esq.

City Attorney

City of Okolona

Post Office Box 147

Okolona MS 38860

Re: Special election for U. S. Representative

Dear Mr. Barton:

Attorney General Hood has received your request for an official opinion and it has been assigned to us for research and reply.

Question Presented

If a city attorney is elected in March of 2008 to complete the term of a U. S. Representative, may he continue to serve as city attorney after his election?

Response

No statute or constitutional provision prohibits such dual service.

Background

Congressman Roger Wicker may be appointed and/or elected to the U. S. Senate, thereby creating a vacancy in the office of U. S. Representative.

Applicable law

Section 266 of the Mississippi Constitution of 1890 prohibits any person holding federal office to hold any office of honor or trust under the laws or authority of this state.

No person holding or exercising the rights or powers of any office of honor or profit, either in his own right or as a deputy, or while otherwise acting for or in the name or by the authority of another, under any foreign government, or under the government of the United States, shall hold or exercise in any way the rights and powers of any office of honor or profit under the laws or authority of this state, except notaries, commissioners of deeds, and United States commissioners.

The Mississippi Supreme court has held that Section 266 applies to the municipal level of government. See State ex rel. Kiersky v. Kelly , 80 Miss. 803, 31 So. 901 (1902).

Analysis

This office has looked at the issue of whether the office of city attorney is an “office” as contemplated in the “separation of powers doctrine” set out in Section 2 of the Mississippi Constitution of 1890, which reads as follows:

No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.

Our analysis in those cases looked to Mississippi Supreme Court decisions which held “no officer of one department may perform a function ‘at the core’ of the power properly belonging to either of the other two departments.” Dye v. State , 507 So.2d 332 at 343 (Miss.1987) discussing the case of Alexander v. State , 441 So.2d 1329 (Miss.1983) . Stated differently, it is only “where the acts are ‘ongoing and are in the upper level of governmental affairs' and have a substantial policy-making character” that it rises to constitutional concern. Dye, id . See MS AG Op., Diaz (June 18, 1990).

Following the ruling in Dye, we have held that the city attorney does not possess “core powers”, i.e., the city attorney only advises and wields no substantial powers himself. Therefore, a city attorney is not subject to the separation of powers doctrine. We are likewise of the opinion that the “core powers” standard also applies to Section 266.

Conclusion

There is no constitutional or statutory impediment to a U.S. Representative serving as a city attorney.

Your letter asks several other questions regarding the manner in which a special election for U.S. Representative will be conducted. However, we are authorized by Miss. Code Ann. Section 7-5-25 (1972) to issue opinions to public officials only on those issues relating to their respective offices. We would direct your attention to the provisions of Miss. Code Ann. Section 23-15-853 (1972) for statutory information on special elections for U.S. Representative.

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

Sincerely yours,

Jim Hood Attorney General.

Reese Partridge Assistant Attorney General.