Mississippi Advisory Opinions December 16, 2016: AGO 2016-00522 (December 16, 2016)

Advisory Opinion Text

AUTH: Beebe Garrard

RQNM: Rep. John T. “Trey” Lamar, III

SUBJ: Elections General

SBCD: 67

TEXT: Representative John T. “Trey” Lamar III

House of Representatives

Mississippi State Representative District 8

Post Office Box 1018

Jackson, MS 39215-1018

Re: Party Affiliation of Elected Officials

Dear Representative Lamar:

Attorney General Jim Hood has received your opinion request and has assigned it to me for research and reply.

Issue Presented

In your request, you ask:

May an individual serving as a Republican or Democrat in state, county, or district office run for another office, as an independent candidate, before the expiration of his or her current term of office? For example, may a Republican or Democrat (District Attorney, County Attorney, Supervisor, State Senator or State Representative) whose 4-year term ends in December 2019, run for mayor of a municipality as an independent candidate in the 2017 election cycle?

Response

Yes. A party-affiliated elected official may run for another office as an independent candidate before the expiration of his or her current term of office.

Applicable Law and Discussion

Our office has previously opined: "Mississippi does not have party registration. Having no party affiliation, candidates and voters in Mississippi are free to choose the primary in which they wish to participate each time primaries are conducted." MS AG Op., Christopher G. Hemphill (January 16, 2003); see also MS AG Op., Nicholson and Smith (January 29, 2007). Similarly, a candidate or elected official who has previously run for office as a party nominee may also choose to participate in a subsequent election as an independent candidate prior to the expiration of his or her current term of office.

A state legislator is not per se prohibited from simultaneously serving in another elected position. See Myers v. City of McComb , 943 So.2d 1 (2006), MS AG Op., William R. Collins (May 30, 2008), and MS AG Op., Caroline Moore (September 24, 1992). However, several potential issues arise with dual employment, namely separation of powers set forth in Sections 1 and 2 of the Mississippi Constitution and the doctrine of incompatible offices. See Dye v. State , 507 So.2d 332 (Miss. 1987), and MS AG Op., Joseph D. Neyman (June 14, 2013). "If one accepts office in a different branch, his or her office in the other branch is automatically vacated as a matter of law." MS AG Op., Robert P. Shepard (July 1, 2011).

Another potential issue arises with respect to payment by two public bodies. "This office has repeatedly opined on and confirmed 'the premise that a public employee cannot lawfully be paid by two public entities for the same hours worked ...'" MS AG Op., Neyman citing MS AG Op., Nixon (July 24, 1984).

Conclusion

A party-affiliated elected official may run for another office as an independent candidate before the expiration of his or her current term of office. However, depending upon the specific offices, potential dual employment issues may arise with respect to constitutional separation of powers issues, whether offices are incompatible and the requirement that a public employee not be paid by two entities for the same time worked. Additionally, we refer you to the Mississippi Ethics Commission regarding any potential conflicts of interest or questions of ethics.

If we may be of further service, please let us know.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

Beebe Garrard, Special Assistant Attorney General