Mississippi Advisory Opinions August 28, 1991: AGO 000005325 (August 28, 1991)

AGO 000005325.

Dear Mr. Wilkerson:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

"I respectfully request an opinion from your office on the following questions:

(1) May an elected member of a city board of aldermen also serve concurrently as an employee of a state agency of Mississippi?

(2) More specifically, may a city alderman serve concurrently as an employee of the State Public Utilities Staff in a position which requires the employee to make periodic on-site inspections of regulated utilities? The state position is not a policy-making position."

In a supplemental letter regarding this matter you wrote: "In response to your letter to me dated August 5, 1991, acknowledging my request for an opinion whether an elected member of a city board may serve as an employee of the State Public Utilities Staff, I submit for your consideration the following:

(1) The position on the Public Utilities Staff in question is that of Engineering Technician II. The official job description is attached. The position primarily involves work in the field whereby the employee conducts inspections or regulated utilities for compliance purposes. The activities are not policy-making in character.

(2) Your attention is directed to a prior opinion of the Office of Attorney General to Representative Oliver Diaz, Jr., dated June 18, 1990. The opinion discusses whether activities constitute 'core powers' of constitutional concern."

The Diaz opinion cited in your second letter quotes Dye v. State, 507 So. 2d 332 (1987) wherein the Mississippi Supreme Court said that "no officer of one department may perform a function 'at the core' of the power properly belonging to either of the other two departments" and that 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. You state in your letters that the activities of the position in question are not policy-making in character.

Based on the above, we know of no prohibition against a member of a municipal board of aldermen serving in a position with the State that does not involve the exercise of "core powers" or "substantial policy-making" authority of the executive branch of government. However, Mississippi Code Annotated Section 77- 1-25 provides in part:

"...No member of the staff of the commission shall, while in such position, be a candidate for any political office or take part in or contribute any money or other thing of value, directly or indirectly, to any political campaign or any candidate for public office. Anyone violating the provisions of this section shall be guilty of a misdemeanor and, upon conviction, shall be punished as provided by law, and shall be dismissed from the staff of the commission."

It is our opinion that members of the Public Utilities Staff of the Public Service Commission would be subject to the above quoted statute. Therefore, in our opinion, an employee in the position described in your letter who is also a member of a municipal board of aldermen may continue to serve in both capacities but would be prohibited from being a candidate for public office which would include being a candidate for re- election.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Special Assistant Attorney General PC:mfd