Mississippi Advisory Opinions July 03, 2002: AGO 2002-0134 (July 03, 2002)

Advisory Opinion Text

John H. White, Esq.

City Attorney

Post Office Box 667

McComb, Mississippi 39649-0667

Re: Adoption of Ordinance Prohibiting Dual Service

Dear Mr. White:

Attorney General Mike Moore has received your request for an official opinion from this office and has assigned it to me for research and reply. Due to the length of your request, your letter is attached to this opinion.

To summarize, the factual scenario which is presented for our consideration is that of a municipal alderman simultaneously serving as a member of the Mississippi State House of Representatives. Your letter cites specific instances where the remaining members of the governing body were concerned that the alderman in question used his position in the Legislature to affect matters within the City. To address this perceived misuse of power, the City of McComb has adopted an ordinance which, by its terms, would restrict the abilities of an individual elected to serve as alderman to serve in any other elected position. You ask two specific questions related to those facts. Those questions are as follows:

(a) Whether the holding of dual elected public offices, in the circumstances described herein, violates the state constitution, public policy, and the laws of Mississippi; and

(b) Whether the ordinance is a valid exercise of municipal authority.

In reference to the first question, we are aware that the Ethics Commission has been granted authority to issue advisory opinions which have relevance to these issues, particularly your concerns with potential violations of Section 25-4-105(3) of the Mississippi Code . With regard to any ethical conflicts presented by the dual service, our office must defer to the Ethics Commission's comments on this matter. Our office has already addressed any potential constitutional violations inherent in such dual service. We direct you to a previous opinion from this office to Honorable David Jordan dated November 25, 1992. In that opinion, we held that it was not a violation of Article 1, Sections 1 and 2 for a member of the state legislature to simultaneously serve as an elected municipal alderman, as both positions are squarely within the legislative branch of government. We see no reason to depart from our prior opinion.

In response to your second question, we must first address the ordinance as passed and adopted by the City of McComb and how it will alter the current qualifications outlined in the city's Special Charter. While we do not, by way of official opinion, interpret provisions of local ordinances, we find it is necessary to examine the terms in order to resolve this question.

The ordinance reads as follows:

It shall be unlawful for any elected official of the City of McComb to:

(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.

The Special Charter of the City of McComb, which we have reviewed, provides one qualification for candidates who wish to run for selectman of the City of McComb and states:

The board of mayor and selectmen of the City of McComb City, Pike County, Mississippi, shall have the authority by ordinance to divide said city into not less than three (3) wards; that one selectman shall be elected from each ward and the remaining number of selectmen shall be elected from the city at large; that the total number of selectmen of said city shall be six (6); that all candidates for selectman from wards shall reside within said ward; that all candidates shall qualify for either selectmen for wards and at large shall be voted on by all of the electors of said city voting in such election .

Thus, the qualifications for the office of selectmen of the City of McComb are set out in McComb's Special Charter. It is the opinion of this office that the City of McComb cannot pass an ordinance to institute changes to the required qualifications of candidates to municipal elective office; the City must instead amend its Special Charter. Section 21-17-9, as amended, of the Mississippi Code governs the amendment process required of cities holding special charters and states the following guidelines:

When a municipality now existing, which has not adopted the code charter or commission form of government, but is governed by another charter, shall desire to amend its charter, the same may be done in this way: the mayor and board of aldermen, city council, or municipal authority, by whatever name known, may prepare, in writing, the desired amendment or amendments and have the same published for three (3) weeks in a legal newspaper published in the municipality, if there be one, and, if none, then by posting for said time in at least three (3) public places therein, after which the proposed amendment or amendments shall be submitted to the Governor, who shall submit the same to the Attorney General for his opinion. The publication of the amendment or amendments may be made as provided in Section 21-17-19. If the Attorney General is of the opinion that the proposed amendment or amendments are consistent with the Constitution and laws of the United States and the Constitution of this state, the Governor shall approve the proposed amendment or amendments. If, after publication is made, one-tenth (1/10) of the qualified electors of the municipality shall protest against the proposed amendments, or any of them, the Governor shall not approve the ones protested against until they shall be submitted to and ratified by a majority of the electors of the municipality voting in a special election. Amendments, when approved by the Governor, shall be recorded, at the expense of the municipality, in the office of the Secretary of State and upon the records of the mayor and board of aldermen, or other governing authorities of the municipality, and when so recorded shall have the force and effect of law. No 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.

Further, because the intent is to impose additional qualifications for individuals wishing to run for selectman in the City of McComb, your attention is directed to 28 C.F.R. Section 51.10 which states that:

...prior to enforcement of any change affecting voting, the jurisdiction that has enacted or seeks to administer the change must either:

(a) Obtain a judicial determination from the U.S. District Court for the District of Columbia that denial or abridgment of the right to vote on account of race, color, or membership in a language minority group is not the purpose and will not be the effect of the change or

(b) Make to the Attorney General a proper submission of the change to which no objection is interposed.

28 C.F.R. Section 51.13 further provides that “[c]hanges affecting voting include...(g) [a]ny change affecting the eligibility of persons to become or remain candidates, to obtain a position on the ballot in primary or general elections, or to become or remain holders of elective offices.” Any change to the qualification to run for municipal elective office in the City of McComb would be subject to administrative review pursuant to Section 5 of the Voting Rights Act of 1965.

For your further information, the Mississippi State Legislature has enacted Senate Bill 2383, which is currently in the process of review by the United States Justice Department. Section 3 of Senate Bill 2383 provides that “[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.”

If our office may be of further assistance, please advise.

Sincerely,

Mike Moore Attorney General.

Heather Wagner Assistant Attorney General.