Mississippi Advisory Opinions September 10, 1979: 19790910 (September 10, 1979)

Advisory Opinion Text

Honorable Donald M. Waits

Attorney At Law

Post Office Box 246

Wiggins, Mississippi 39577

Dear Mr. Waits:

Your letter request of September 5, 1979, addressed to Honorable A. F. Summer Attorney General, has been received and assigned to this writer for research and reply. Your letter states:

‘One of our City Board members has recently been elected to the office of Superintendent of Education, both being elective offices under the laws of the State of Mississippi.

‘It would be appreciated if you would let me know as soon as possible whether or not it is legally permissible for this person to hold both elective offices.’

Brief reference is made to Sections 1 and 2, Mississippi Constitution of 1890. The former stating that the powers of government are divided into three distinct departments, viz.: legislative, judicial and executive and the latter saying that a person serving in one of these departments cannot exercise the powers of another and further that the acceptance of another office automatically vacates the office presently held.

It is the opinion of this office that a County Superintendent of Education is an executive office. As stated in the Meredith opinion of April 20, 1977 (attached hereto and included herein by reference) an aldermanic office is legislative. For your further information, we enclose copy of an opinion to Mr. E. L. Perritt, Rankin County Superintendent of Schools, dated March 15, 1977.

Under the specific facts related in your inquiry, said offices being incompatible, the answer is ‘no’.

Very truly yours,

A. F. Summer, Attorney General.

John M. Weston, Special Assistant Attorney General

ATTACHMENT

March 15, 1977

Mr. E. L. Perritt

Superintendent, Rankin County Schools

Brandon, Mississippi 39042

Dear Mr. Perritt:

Attorney General Summer has received your letter of request dated March 9, 1977, and has assigned it to me for research and reply. In your letter you inquire as follows:

‘When the Richland area of Rankin County became incorporated, one of our county school board members lived within the newly incorporated area and was appointed to serve as an alderman for Richland.

Is it legal for him to serve as an appointed alderman and an elected school board member at the same time?

Municipal elections are held in May. This same school board member is a candidate for election as an alderman. If elected, can he serve as an elected alderman and an elected school board member at the same time?'

First, the matter of whether one is appointed or elected to public office is not material when we consider the prohibitions of Section 2, Mississippi Constitution of 1890. Said section prohibits one who has accepted the office of alderman (a legislative office) from continuing to serve as alderman if such person has accepted an office in a different department of government such as that of being a member of the county school board, which is an executive office. For sake of emphasis, when one who is serving as alderman accepts a school board office, such person vacates the office of alderman under the provisions of Section 2, Mississippi Constitution of 1890. The converse of this would also be true.

With kind regards, I am

Very truly yours,

A. F. Summer Attorney General.

George M. Swindoll Assistant Attorney General.