Mississippi Advisory Opinions July 20, 2011: No. 2011-00263 (July 20, 2011)

No. 2011-00263.

Dear Mr. Yarborough:

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

You state that certain municipal employees are running for county offices. Specifically you state that a police department sergeant is a candidate for constable; a police department investigator is a candidate for justice court judge; and the public works director/recovery manager is a candidate for supervisor. You cite and quote a part of a municipal ordinance pertaining to the issue and ask if the positions sought are "political offices" and if the ordinance prevents the employees in question from continuing their municipal employment upon being elected to the county offices they seek. You further ask if the doctrine of separation of powers or our conflict of interest laws would prohibit such dual employment.

With respect to the interpretation of the ordinance cited and quoted in your letter, we do not by official opinion interpret municipal ordinances. Local ordinances are best interpreted by the governing authorities who adopt them. MS AG Op., Barton (April 29, 2011); MS AG Op., Mayo (June 18, 2010); MS AG Op., Doty (October 6, 2000).

With respect to the doctrine of separation of powers, a police sergeant and constable are both in the executive branch of government. MS AG Op., Purnell (June 7, 2002); MS AG Op., Walker (June 10, 2005). Therefore, serving in both of those capacities simultaneously would not violate the doctrine of separation of powers. We caution that one serving in both capacities must keep the two positions separate. When he is acting as police sergeant he must act exclusively as such and be paid as such. When he is acting as constable he must act as such and be paid as such. The duties and responsibilities of one position may not interfere with the duties and responsibilities of the other. MS AG Op. Lawrence (December 9, 1993).

An investigator is a part of and exercises "core powers" of the executive branch of government. MS AG Op., Abron (June 21, 2004). Obviously, a justice court judge is in the judicial branch of government. MS AG Op., Glover (July 8, 2005). Therefore, one could not serve in those two capacities simultaneously. If the investigator is elected to the office of justice court judge and takes the oath of office he, by operation of law, vacates his position of investigator.

A member of a county board of supervisors is in the judicial branch of government. MS AG Op., Cox (April 2, 2010). A municipal public works director is in the executive branch of government. A violation of the separation of powers doctrine occurs if both offices or positions exercise "core powers" of the department of government in which each office or position is found. Although such is ultimately a factual question, the position of a public works director appears to meet the criteria of a position exercising "core powers." The powers exercised are ongoing, are in the upper level of municipal government, and have substantial policy-making character. Therefore one could not serve in those two capacities simultaneously. If the public works director is elected to the office of supervisor and takes the oath of office he, by operation of law, vacates his position of public works director.

With respect to any questions of conflict of interest, we refer you to the Mississippi State Ethics Commission.

Article 1, Sections 1 and 2 of the Mississippi Constitution of 1890 provide:

Section 1. Powers of government

The powers of 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.

Section 2. Encroachment of power

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 held that no officer of one branch of government may perform a function "at the core" of the power properly belonging to either of the other two branches of government. Alexander v. State By and Through Allain, 441 So.2d 1329 (Miss. 1983).

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General