Mississippi Advisory Opinions July 31, 1998: AGO 98-0384 (July 31, 1998)

Advisory Opinion Text

Honorable Rufus Straughter

House of Representatives

120 Van Buren Street

Belzoni, MS 39038

Re: Hatch Act and Separation of Powers

Dear Representative Straughter:

Attorney General Mike Moore has received your request for an opinion and has assigned it to me for research and reply. You state and ask as follows:

A school attendance officer has expressed a desire to run for county supervisor within his respective county. I would, however, appreciate an official opinion from your office concerning this issue. Is it legal for an individual to continue employment by the State Department of Education as a school attendance officer while serving as a county supervisor?

Although we cannot respond by way of official opinion we should point out that the Federal Hatch Act, 5 U.S.C. 1501, et seq., prohibits persons who are employed by state or local government in an activity which is funded in whole or in part by loans or grants made by the United States or a federal agency from being candidates in partisan elections. A partisan election is one in which there are candidates in the race who are seeking the nomination of or are the nominees of a party that had a candidate receive electoral votes in the preceding presidential election. See MS AG Op., Robinson (November 1, 1996), copy attached. The Hatch Act would be a consideration if the school attendance officer's job or activities are “funded in whole or in part by loans or grants made by the United States or a federal agency”.

Another consideration is whether it would violate the separation of powers doctrine for a school attendance officer to serve as county supervisor. Sections 1 and 2 of the Mississippi Constitution of 1890 prohibit an officer of one branch of government from entering into an office in a separate branch of government. If a person enters into office in a separate branch of government he automatically vacates his prior office. A school attendance officer is in the executive branch of government. See MS AG Op., Powell (February 21, 1997). A county supervisor is an officer of the judicial branch of government. Haley v. State , 108 Miss. 899, 67 So. 498 (1915) . Therefore, a person may not simultaneously be a school attendance officer and a county supervisor. See In Re Anderson , 447 So.2d 1275 (Miss. 1984) .

Very truly yours,

Mike Moore, Attorney General.

Mike Lanford Assistant Attorney General.