Mississippi Advisory Opinions May 31, 2002: AGO 000015520 (May 31, 2002)

AGO 000015520.

Dear Mr. Prospere:

Attorney General Mike Moore has received your submission, made pursuant to Miss. Code Ann. Section 21-17-19, of a proposed amendment to the Private Charter of the City of McComb City. The change anticipated is the inclusion of a Statement of Public Policy, which addresses the ability of public servants, employees or elected officials of the City from doing or taking any actions which may serve to influence a decision of the governing authority of the municipality or to hold certain elective positions in governmental entities which either appropriate funds to the municipality or which is empowered to grant relief of any manner to the municipality.

Attached documentation shows that the proposed amendment has been published in the McComb Enterprise-Journal, a newspaper published in the City of McComb on July 19, July 26 and August 2, 2002. It has been submitted that there were no protests to the proposed amendment.

Pursuant to Miss. Code Ann. Section 21-17-9, our office is mandated to undertake a review of the proposed amendment, to ensure that it is "consistent with the Constitution and Laws of the United States, and the Constitution of this State." That section further provides as follows:

[n]o amendment to the private or special charter of any municipality shall be adopted or approved when such amendment is in conflict with any of the provisions of this title expressly made applicable to municipalities operating under a private or special charter, or is in conflict with the provisions of any other legislation expressly made applicable to any such municipality.

The proposed charter amendment is as follows:

STATEMENT OF PUBLIC POLICY

It is hereby declared essential to the proper operation of democratic government that public officials and employees be independent and impartial; that governmental decisions and policy be made in the proper channels of the governmental structure; that public office not be used for private gain other than the remuneration provided by law; that there by public confidence in the integrity of government; and that public officials be assisted in determinations of conflicts of interest:

1. From and after the adoption of this charter amendment, it shall be unlawful, and no public servant, employee, or elected official shall:

1. Perform any service for any compensation during the term of office or employment by which he attempts to influence a decision of the governing authority of the City of McComb City. 2. Serve as an elected official in any governmental entity which appropriates funds to be received by the City of McComb City, which funds are to be used by or for the government of the City of McComb City in the administration of municipal governmental affairs. 3. Serve as an elected official in any governmental entity which is empowered to grant or deny any request by the City of McComb City for any relief, funding or other action relating to the operation of the municipal government of the City of McComb City. 4. This Charter Amendment shall become effective upon compliance with the requirement of the Mississippi Code Section 21-17-9 and receipt of approval of the United States Department of Justice.

We have examined Section 1.a. and found it to be consistent with the general law applicable to public servants as stated in Section 25-4-105(3)(d). We next turn to Sections 1.b. and 1.c. of the proposed charter amendment. Of concern to this office in relation to these two provisions is Senate Bill 2383 (2002 Regular Session), codified as Section 21-15-2, which reads as follows:

[n]o municipality shall impose any additional requirements on holding any municipal elective office or receiving compensation for any elective office except as may be provided by law.

Section 21-15-2 became effective on July 22, 2002 (the date effectuated under Section 5 of the Voting Rights Act). Further Section 21-17-5(2)(d) specifically forbids a municipality to "change the requirements, practices or procedures for municipal elections . . ." Both of these statutes are in conformity with Section 250 of the Mississippi Constitution, which states as follows:

All qualified electors and no others shall be eligible to office, except as otherwise provided in this Constitution; provided, however, that as to an office where no other qualification than that of being a qualified elector is provide by this Constitution, the legislature may, by law, fix additional qualifications for such office.

See also McCool v. State, 115 So. 121, 149 Miss. 49 (1928) (Section 250 of MS Constitution of 1890 fixes qualifications for public office).

Based upon the above, it is the opinion of this office that the proposed amendment is not consistent with the laws and Constitution of the State of Mississippi and is not approved. If our office may be of further assistance, please advise.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Heather P. Wagner

Assistant Attorney General