Mississippi Advisory Opinions November 01, 2013: AGO 2013-00435 (November 01, 2013)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Chris Powell ..

SUBJ: Separation of Powers ..

SBCD: 271

TEXT: Chris Powell, Esquire

Attorney for Town of Sunflower

Post Office Box 1263 South Court Street

Cleveland, Mississippi 38732

Re: Separation of Powers

Dear Mr. Powell:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Issues Presented

Your letter states:

This spring, a deputy sheriff of Sunflower County was elected to serve as an alderman of the Town of Sunflower. His term of office as alderman began July 1, 2013. He is still employed as a deputy sheriff, although he is not assigned to patrol within the Town of Sunflower.

Serving as both a deputy sheriff and an alderman appears to violate the separation of powers provisions of the Mississippi Constitution, Article 1, Sections 1-2. Your opinion to Mitchell Tyner, No. 2009-00425, addresses this exact scenario. However, I am not sure what our Constitution means when it says:

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.

What is the legal effect of this deputy sheriff's taking office as alderman? Upon taking office of alderman, did he vacate his office as deputy sheriff? Or did he vacate both his office as deputy sheriff and his office as alderman?

Most importantly, what legal duty does the constitutional violation create for the Town of Sunflower? What statutory course of action, if any, should the Town commence? Is such course of action a duty or a recourse? Are the removal provisions of MCA Section 25-5-1 et seq. applicable?

Further, should the Town refrain from paying this alderman his monthly stipend? Should the Town not count this Alderman's attendance as part of a quorum at meetings? Should the Town not count this Alderman's vote at meetings?

Response

We find nothing that prevents a deputy sheriff from being a candidate for alderman and, if elected, from assuming the office of alderman and exercising all the duties pertaining to that office. The legal effect of a deputy sheriff taking office as an alderman is that he automatically vacates the office of deputy sheriff. MS AG Op., Smith (May 25, 2001).

The fact that the individual was serving as a deputy sheriff at the time he entered the office of alderman, does not affect his eligibility to serve and fully participate in meetings of the board of aldermen or the legality of any actions taken by the board. It creates no legal issues for the municipality.

We understand that the individual in question has resigned his alderman position.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.