Mississippi Advisory Opinions July 09, 1999: AGO 1999-0346 (July 09, 1999)

Advisory Opinion Text

Mr. Trey Evans

Circuit Clerk, Leflore County

P. O. Box 1953

Greenwood, Mississippi 38935-1953

Re: Qualifications of candidate for sheriff

Dear Mr. Evans:

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.

Your letter states and asks:

It has come to my attention that a candidate for the office of sheriff does not meet the eligibility requirements as defined in Section 19-25-3 of the Mississippi Code of 1972 . In part, it reads that at the time of the election he not be a defaulter to the state or to the United States.

Enclosed are copies of unpaid federal tax liens. Also enclosed are copies of an indictment, plea agreement, and sentence to a federal embezzlement charge.

My question as to the information above is, if the embezzlement or the tax liens or both fall within the guidelines of Section 19-25-3, what steps should be taken and whose authority is it to take this candidate off the ballot?

By subsequent telephone conversation, you stated that the individual has filed a petition with a political party county executive committee and that the executive committee, which had no knowledge of the above facts, had certified the individual as a candidate for sheriff.

In response to your question, we will first address the question of what official or body has the authority to determine whether a particular candidate meets the qualifications for the office sought. Unless the context clearly indicates otherwise, all references to Sections hereinafter are references to sections of the Mississippi Code of 1972 .

In regard to the conduct of a political party primary, Section 23-15-263 provides in pertinent part as follows:

(1) Unless otherwise provided in this chapter, the county executive committee at primary elections shall perform all duties that relate to the qualification of candidates for primary elections, print ballots for primary elections, appoint the primary election officers, resolve contests in regard to primary elections, and perform all other duties required by law to be performed by the county executive committee;

Section 23-15-299(7) supplies the standards by which an executive committee determines the qualifications of a candidate:

Upon receipt of the proper fee and all necessary information, the proper executive committee shall then determine whether or not each candidate is a qualified elector, and whether any candidate has been convicted of any crime listed in Section 241, Mississippi Constitution of 1890, or is a fugitive from justice for this state or any other state, and such charge upon which a candidate has fled has not been dismissed. If the proper executive committee finds that a candidate is not a qualified elector, or that such candidate has been convicted of any crime listed in Section 241, Mississippi Constitution of 1890, and not pardoned nor has served his or her sentence, or is a fugitive from justice as aforesaid, then the name of such candidate shall not be placed upon the ballot.

Therefore, it is clearly the duty of the executive committee of the political party to determine whether the individual is in fact qualified for the office sought, and whether the individual should be placed on the ballot for the party primary. See MS AG Op., Evans (April 19, 1995), a copy of which is enclosed.

Turning to the remainder of your question, we note that in addition to the general requirements for qualification as a candidate for office, Section 19-25-3 provides in pertinent part as follows:

A person shall not be eligible to the office of sheriff who shall, at the time of the election, be a defaulter to the state, or any county or municipality thereof, or to the United States.

We have previously opined that the word “defaulter” as used in this statute involves the breach of a public trust or public duty, and does not include a failure to pay ordinary debts such as government guaranteed loans. See also MS AG Op., Aycock (April 10, 1987), a copy of which is enclosed. However, Section 19-25-3 does not set a minimum dollar figure for an individual to owe before being classified as a defaulter.

Count I of the federal indictment charged this individual with embezzlement of an amount less than felony, and hence the charge was a misdemeanor to which the individual pled guilty and was convicted. The count charged that the individual

... being a Postal Service Officer and Employee, willfully and knowingly did steal, purloin and convert to his own use money and property, of a value not exceeding $100, coming into his hands and under his control, in the execution of and under color of his office and employment ....

It therefore appears that a person who, while in a position of public trust or public duty, embezzled funds which were the property of the United States, is a defaulter within the meaning of Section 19-25-3 . Therefore, if the political party executive committee finds, consistent with fact, and encompasses such finding in an order spread upon its minutes, that the individual who seeks to be a candidate is one and the same person as the individual who pled guilty to misdemeanor embezzlement from the United States, said executive committee is required by Sections 19-3-25 and 23-15-299(7) to withdraw its certification of such individual as a candidate for sheriff and to remove the name of such individual from the ballot or not place the individual's name upon the ballot.

Very truly yours,

Mike Moore Attorney General

Edwin T. Cofer, Special Assistant Attorney General