Mississippi Advisory Opinions December 22, 2006: No. 2006-00630 (December 22, 2006)

No. 2006-00630.

DOCK 2006-00630

Dear Mr. Shoemake:

Attorney General Jim Hood received your request for an official opinion and assigned it to me for research and response. In your letter of request, you state:

An Alderman for the City of Collins is contemplating announcing his candidacy for the County Superintendent of Education.

Will this violate the "separation of powers" doctrine? If elected to Superintendent of Education, will the Alderman have to resign his position as Municipal Alderman? Will he have to resign his position as Alderman during the campaign for election as Superintendent of Education?

In response, Article 1, Section 1 of the Mississippi Constitution of 1890 provides:

The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.

Article 1, Section 2 of the Mississippi Constitution of 1890 provides:

No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.

The Mississippi Supreme Court has interpreted these provisions in the following manner:

We recognized that the 1890 Constitution had strengthened the mandate that the three great powers of government be separate. Not all "overlapping" is constitutionally proscribed, particularly involving low level "administrative matters." But where the acts are "ongoing and are in the upper level of governmental affairs" and have a substantial policy-making character, the "trespass reaches constitutional proportions." The essence of Alexander is 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. (citations omitted).

Dye v. State ex rel. Hale, 507 So. 2d 332 at 343 (Miss. 1987) citing Alexander v. State ex rel. Allain, 441 So. 2d 1329 (Miss. 1983).

This office has previously opined that an alderman serves in the legislative department of government. MS AG Op., Cobbins (October 7, 2005). An elected county school superintendent serves in the executive department of government. Both offices exercise core powers as described in the Dye case quoted above. Therefore, it is our opinion that there is a constitutional prohibition against an individual serving simultaneously as an alderman and as an elected county school superintendent. There is no prohibition against an alderman being a candidate for county school superintendent. However, if the individual is elected and assumes the duties of the office of county school superintendent, the individual immediately vacates the office of alderman by operation of law.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

By: Chuck Rubisoff Special Assistant Attorney General