Mississippi Advisory Opinions July 24, 2009: AGO 2009-00425 (July 24, 2009)

Advisory Opinion Text

Mitchell H. Tyner, Sr., Esquire

Attorney

Tyner Law Firm, P.A.

5750 I-55 North

Jackson, MS 39211-2638

Re: Public Official and the Hatch Act

Dear Mr. Tyner:

Attorney General Jim Hood received your request and assigned it to me for research and response.

Issue Presented

You state that an employee of the county sheriff's office, whom you represent, was elected to a municipal board of aldermen and ask if he is in violation of the Hatch Act, since his employer, the county, receives funding from the United States government for temporarily housing prisoners from time to time?

Response

The Hatch Act is a federal law under the jurisdiction of the Office of Special Counsel. We do not interpret federal law by way of an official opinion.

Generally, the Hatch Act restricts political activity of individuals principally employed by state, county, or municipal executive agencies who work in connection with programs financed in whole or in part by federal loans or grants. State and local employees may be candidates for the public office in nonpartisan elections.

Whether an individual is covered by the Hatch Act and whether a covered employee has violated the Hatch Act must be determined by the Office of Special Counsel. You may contact that office at the following address:

Hatch Act Unit

U.S. Office of Special Counsel

1730 M Street, N. W., Suite 201

Washington, D.C. 20036-4505

Tel: (800) 854-2824; (202) 653-7143

However, in order to fully address the legal status of the individual involved in the factual situation described in your letter, we find it necessary to consider the impact of the doctrine of separation of powers as set forth in the Mississippi Constitution.

If the employee in question is a deputy sheriff and serving on a municipal board of aldermen, he or she would be in violation of the doctrine of separation of powers. If the employee is not a deputy, he or she would not be in violation of the doctrine of separation of powers.

Applicable Law and Discussion

Sections 1 and 2 of the Mississippi Constitution prohibit a person from serving simultaneously in two branches of government. They provide:

Section 1 . 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 one, those which are judicial to another, and those which are executive to another.

Section 2 . 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.

In Dye v. State ex rel. Hale , 507 So.2d 331, 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. Of course, not every act is the exercise of a power. Not all “overlapping” is constitutionally proscribed, particularly regarding low level “administrative matters.” But where the acts are “ongoing and are in the upper level of governmental affairs” and have 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).

We have previously opined that members of a city council or board of aldermen are in the legislative department of government and exercise core powers. MS AG Ops., Bailey (July 18, 1997), and MS AG Op, Miller (January 21, 2005). We have also previously opined that employees of a sheriff's office, who do not have law enforcement authority, are within the executive department of government, but do not exercise core powers. MS AG Ops., Huffman (January 19, 2007), Faneca (July 1, 2003) and Blunston (October 8, 2008). In contrast, a deputy sheriff in the sheriff's office has law enforcement authority and, therefore, exercises core powers. MS AG Ops., Miller (January 21, 2005) citing In re Anderson , 447 So.2d 1275 (Miss. 1984) and Stokes (May 21, 2004).

Conclusion

You should contact the Office of Special Counsel regarding any Hatch Act questions.

A deputy sheriff may not simultaneously serve on a municipal board of aldermen. An employee of the sheriff's office who is not a deputy may simultaneously serve on a municipal board of aldermen provided he or she is not paid by two governmental entities for the same hours worked and subject to possible Hatch Act violations and penalties as determined by the Office of Special Counsel.

Sincerely,

Jim Hood, Attorney General

Phil Carter, Special Assistant Attorney General