Mississippi Advisory Opinions October 18, 2002: AGO 2002-0597 (October 18, 2002)

Advisory Opinion Text

Terry T. James, Esquire

Attorney for City of Calhoun City

Post Office Box E

Calhoun City, Mississippi 38916

Re: Election of Party Executive Committee Members

Dear Mr. James:

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

I serve as City Attorney for the City of Calhoun City, Mississippi, and I have been requested by the Chairman of the Municipal Democratic Committee and the City Clerk to inquire as to the situation at hand.

The City of Calhoun City has been in litigation in the United States District Court for the Northern District of Mississippi for the past year and one-half relative to establishing alderman elections based upon a ward system rather than at large. The City has entered into a Consent Judgment which has been entered by the Court establishing these wards and the United States Department of Justice has notified the city that it has no objection to the ward plan. As a result, city primary elections have now been set for November 12, 2002, by the Consent Order.

The qualifying deadline has now passed and all potential candidates have now filed their qualifying papers. Also, the Consent Order established that the party executive committee members shall be elected as all the elected officials.

In reviewing the Mississippi Code and in particular Section 23-15-309 of the Mississippi Code of 1972, as amended, it is unclear to me if the appropriate party executive committee must review those who qualify for the office of a seat on a municipal party executive committee. Therefore, this raises the following questions.

1. Can a person be qualified and serve as a member of a municipal party executive committee who would be excluded to qualify and run as a candidate for public office under the Mississippi Constitution and under the following language of subpart 4 of Section 23-15-309 : “whether any candidate has been convicted of any felony in a court of this state, or has been convicted on or after December 8, 1992, of any offense in another state which is a felony under the laws of this state, or has been convicted of any felony in a federal court on or after December 8, 1992. Excepted from the above are convictions of manslaughter and violations of the United States Internal Revenue Code or any violations of the tax laws of the state unless such offense also involved the misuse or abuse of his office or money coming into his hands by virtue of his office.”?

2. Can the municipal executive committee of the party of the person qualifying to run for a seat upon that party committee disqualify the candidate if there is a finding pursuant to the above provisions by the committee?

3. Is a member of a municipal executive committee considered to be a public official or is such office considered to be a position of public trust?

Mississippi Code Annotated Section 23-15-171 (Revised 2001) provides for the election of municipal party executive committee members in primary elections held for the nomination of candidates for municipal offices. It provides that “all primary elections in municipalities shall be held and conducted in the same manner as is provided by law for state and county primary elections.”

In our opinion to Harold S. Jackson, Esquire, dated May 12, 1993 we said that the filing fee required by Mississippi Code Annotated Section 23-15-309 (Revised 2001) is not applicable to candidates for membership on a municipal party executive committee. However, in that same opinion we said that since municipal party executive committees are provided for by statute, they are generally viewed as quasi-governmental entities. We now opine that since municipal party executive committees are statutorily charged with the responsibility of conducting municipal primaries in accordance with state law, membership on said committees does constitute serving in a position of public trust.

Section 44, Mississippi Constitution of 1890 provides in part:

No person shall be eligible to a seat in either house of the Legislature, or to any office of profit or trust, who shall have been convicted of bribery, perjury, or other infamous crime;... (emphasis added)

Section 1-3-19 of the Code defines the term “infamous crime” as “offenses punished with death or confinement in the penitentiary.”

Therefore, in response to your first question, we are of the opinion that potential candidates for membership on a municipal party executive committee are subject to the provisions of Section 44 of the Constitution and Section 23-15-309 as they pertain to criminal convictions.

In response to your second question, it is our opinion that if a municipal party executive committee finds, consistent with the facts, that a potential candidate for membership on said committee who has filed his or her statement of intent has been convicted of any felony covered by Section 44 of the Constitution and Section 23-15-309, said committee could not lawfully qualify that individual as a candidate.

In response to your third question and as stated above we are of the opinion that a member of a municipal executive committee is considered to be serving in a position of public trust.

Sincerely,

Mike Moore Attorney General.

Phil Carter Special Assistant Attorney General.