Mississippi Advisory Opinions August 30, 2013: AGO 2013-00345 (August 30, 2013)

Advisory Opinion Text

TEXT: Marvin E. Wiggins, Jr., Esq.

Attorney at Law

P.O. Box 696

Dekalb, MS 39328

AUTH: Ricky Luke

RQNM: Marvin Wiggins

SUBJ: Municipal Officers

SBCD: 149

Re: Separation of Powers Issues

Dear Mr. Wiggins:

Attorney General Jim Hood is in receipt of your opinion request and has assigned it to me for research and response:

Issues Presented

Your letter states that the Town of Scooba (the “Town”) has been unable to fill the alderman position for Ward Five. The incumbent alderman resigned prior to his term of office, and the only candidate to qualify in the general election did not take office due to potential conflicts of interest. When the Board of Aldermen (the “Board”) called a special election to fill the position, no one qualified to run in the election. You also note that the Board’s effort to appoint someone to fill the position has only identified one of the 40 to 50 qualified electors in the ward that has any interest in serving. This individual, however, is the Vice President of East Mississippi Community College and you question whether his service in that position and as an alderman would violate the separation of powers doctrine. Specifically your request seeks our opinion on the following:

1. Would a person serving as a vice president of a community college have a position at the “core of executive power, ” thereby precluding service also in a legislative position as alderman?

2. If such person could serve in both capacities, would a conflict of interest, as proscribed by Mississippi constitution Section 109, preclude such person from serving as alderman?

3. What would be the next step for the Town to take, in the event that no qualified elector of Ward Five is willing to serve as alderman for the ward, since Section 23-15-887 allows only one special election per vacancy.

Discussion and Legal Analysis

As you acknowledge in your letter, the Mississippi law doctrine of separation of powers prohibits a person from simultaneously serving in two branches of government if that person exercises core powers in both branches of government. This office has repeatedly opined that an alderman exercises core powers of the legislative branch. With regard to community colleges, this office has opined that “[a] member of the Board of Trustees of a Community College is in the executive branch” and that a trustee exercises powers at the core of the executive branch. MS AG Op. Ray (Oct. 13, 1995). This office has never opined as to a vice president of a community college. However, in your letter you state that the individual in question’s duties encompass “institutional research and effectiveness, EEOC/OCR programs, SACS liaison” and that he “effectively, is the second-in-command at the Scooba campus.” Discussing the concept of “core” powers, the Mississippi Supreme stated:

Not all “overlapping” is constitutionally proscribed, particularly regarding low level “administrative matters.” Alexander , 441 So.2d at 1337. 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.” Alexander , 441 So.2d at 1337.

Dye v. State ex rel. Hale , 507 So.2d 332, 343 (Miss.1987). Obviously, the individual’s duties you describe are not low level administrative matters. Moreover, as second in command and with duties that clearly appear to involve substantial managerial and policy issues, it is the opinion of this office that the individual described in your letter does exercise powers at the core of the executive branch.

Accordingly, and in response to question number 1, it is the opinion of this office that the individual does exercise core powers of the executive branch, and for this reason, would be precluded from simultaneously serving as an alderman. Your question number 2 involves the application of Section 109 of the Mississippi Constitution. Our office does not provide opinions with regard to ethics in government questions and this inquiry should be addressed to the Mississippi Ethics Commission.

Your final question asks what steps should be taken in the event that no qualified elector of Ward Five is willing to serve. Section 23-15-857 states with regard to special elections that

In the event no person shall have qualified by 5:00 p.m. at least twenty (20) days prior to the date of the election, the governing authority or remainder of the governing authority shall dispense with the election and fill the vacancy by appointment.

Thus, it is the opinion of the office that the Town should continue to operate with its existing Board. We found no provisions that would allow the Board to appoint anyone other than a qualified elector of the subject ward. The Town and Board should, however, continue in its efforts to find a qualified individual that is willing to accept an appointment as alderman for Ward Five.

Conclusion

Accordingly, it is the opinion of this office that the subject individual may not simultaneously serve as an alderman and in his current position with East Mississippi Community College. Likewise, it is the opinion of this office that the Town should continue to operate with its four member Board of Aldermen and that the Town should continue its efforts to find a qualified individual who will accept an appointment as an Alderman. With regard to any questions concerning Section 109 of the Constitution or the Ethics in Government Law, those questions should be addressed to the Mississippi Ethics Commission. If our office can be of further assistance, do not hesitate to contact us.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Ricky Luke Assistant Attorney General