Mississippi Advisory Opinions February 21, 1980: AGO 000001213 (February 21, 1980)

AGO 000001213.

Dear Mr. Robertshaw:

Attorney General Allain has received your opinion request dated February 12, 1980 and has assigned it to me for re- search and reply, your letter of request stating:

"Following up our telephone conversation, I ack- nowledge receipt of various opinions of the At- torney General stating that Section 2 of the Mis- sissippi Constitution of 1890 would bar one person from simultaneously holding the offices of Alder- man and Trustee.

"Your attention is invited to Broadus v. State, 132 Miss. 828, 96 So 745 (1923), and to 63 AmJur 2d, Public Officers and Employees, Sections 63, 73, et seq. Shepard's Citations do not indicate that Broadus has been cited since the decision was rendered.

"Actually, both the Board of Aldermen and Board of Trustees perform executive, legislative, and quasi judicial duties. Compare Section 37-7-301 and Section 27-7-11, Mississippi Code of 1972. As a practical matter, I can see no incompata- bility between the two offices, no practical possibility that there would be any conflict in jurisdiction or duties, and no clear classifica- tion of either body as falling wholly within one of the three departments of Government. Taking into consideration the fact that Trustees are not compensated, and normally devote a limited amount of time to the office, the reasoning of Judge Holden in Broadus seems to make a great deal of sens.

"I would appreciate it if you could run this past your Opinion Committee. Since the time for election of Trustees is rapidly approaching, time becomes important."

I understand that Mr. Ivory Walker, one of your School Board Trustees, has recently been declared one of the win- ners of a special aldermanic election in the Town of Met- calfe. I do not know if Mr. Walker is a candidate for School Trustee at the election to be held the first Sat- urday of March. However, the office cannot render an official opinion on a matter that has already transpired, that being for final determination only by a court of com- petent jurisdiction.

However, we pass on to you for observation:

Broadus states, among other things, that "judicial officers accept and perform the duties of trustees for school dis- tricts and for state colleges". The situation which the Broadus case thus refers to as parallel or analogous was broached by this office's opinion dated February 16, 1971, to Chancellor William H. Anderson, written by then Assis- tant Attorney General Maurice Black and this office's opin- ion, written by First Assistant Attorney General P. L. Douglas, dated August 21, 1979, to Robert J. Hoffman of the Department of Audit, copies of which referenced opinions are attached.

Very few matters have changed as much as the school statutes have since the Broadus case decision in March, 1923. Specifi- cally, I quote from this office's opinion written by the late Assistant Attorney General George Swindoll, dated November 12, 1975 to George W. Rogers, Jr.

"xxxx...school trustees created under Chapter 12 (Extraordinary Session 1953) for the various pub- lic school districts, e.g., countywide school dis- tricts, municipal separate school districts, con- solidated school districts, etc., are in the ful- lest" (sense) "of the word officers in the execu- tive department of government and that a person serving as such would immediately vacate such of- fice upon accepting an office in either of the other departments of government. xxxx," a copy of which opinion I enclose herewith.

The Mississippi Constitution of 1890 makes them incompatible. Even an official opinion of this office is only advisory, is not intended to be self-executing, and is legal protection to the authorized requester until "a court of competent jurisdic- tion, after a full hearing, shall judicially declare that such opinion is manifestly wrong and without any substantial support." (7-5-25, Mississippi Code of 1972).

The office certainly appreciates your sharing with it the thoughts set out in your letter and hope that the above and enclosures will be of guidance to you.

Thank you for giving this office this opportunity to be of service.

Yours very truly,

BILL ALLAIN, ATTORNEY GENERAL

BY:

Richard M. Allen Special Assistant Attorney General

RMA/ped