Mississippi Advisory Opinions June 13, 1979: 19790613 (June 13, 1979)

Advisory Opinion Text

Honorable Butch Lambert, Sr.

Member of the House of Representatives

Post Office Box 1500

Tupelo, Mississippi 38801

Dear Mr. Lambert:

In regard to your question, whether or not an appointed state official may be employed by another state agency during the period of time that he holds such appointive office and be compensated both as an officer and an employee of a different state agency, we respond as follows:

We do not find constitutional or statutory provision which prohibits the employment of a state officer by another agency as an employee. If an officer is employed by another state agency such person cannot, of course, be compensated for services in both positions for the same period of time or same work hours. However, so long as the duties performed as an employee are not at a time when such person would, or should, be engaged in the performance of his duties as a public officer, such person would not be prohibited from engaging in working for another agency and being compensated therefor.

For further information, we enclose herewith prior opinions by Honorable Guy N. Rogers to Mr. J. C. McDonald dated July 19, 1973, and by Honorable Don Clark, Jr. to Representative Frank Lynn dated February 11, 1976, and Honorable John M. Weston to Mr. Gale Martin dated May 14, 1979.

If further information is desired, please advise.

Very truly yours,

A.F. Summer, Attorney General.

P. L. Douglas, First Assistant Attorney General.

February 11, 1976

Representative Frank D. Lynn

House of Representatives

New Capitol Building

Jackson, Mississippi

Dear Representative Lynn:

Attorney General A. F. Summer has received your letter of request and has assigned it to this writer for research and reply.

Your letter of February 4, 1976, states as follows:

‘I would like to have your opinion on the law or laws pertaining to the point of law which deals with someone working for a department in county government that is an elected state official. (Is it legal to work for the county and be an elected official?)’

The fact that a person is an elected state official does not prohibit said person from being a county employee so long as the county employment does not interfere with the performance of his duties as a state official. Provided further, that you are not refering to a county officer whose duties would be in a different branch of government than those of the state official. (See Sections 1 and 2 of the Mississippi Constitution of 1890.)

Trusting the above will be of some benefit to you, I am Very truly yours,

A. F. SUMMER, ATTORNEY GENERAL

Donald Clark, Jr., Special Assistant Attorney General.

July 19, 1973

Mr. J. C. McDonald

Chairman

Probation and Parole Board

Suite 807

Robert E. Lee Building

Jackson, Mississippi 39201

Dear Mr. McDonald:

Attorney General Summer has received your letter of request dated July 9, 1973, and has assigned it to me for research and reply.

Your letter of request states as follows:

‘Section 4004–05 of the Mississippi Code states:

“These employees shall be full-time employees.'

‘I have an application under consideration for a person who is an elected city official (Board of Aldermen) in a community. This in itself is not a job, as they only meet at night on a regularly scheduled basis. He is, however, compensated for these monthly meetings.

‘My question to you is, based on the section quoted above, can we employ this individual?’

The initial question to be determined is whether or not the applicant who is a member of a Board of Aldermen is an officer or an employee of the Probation and Parole Board.

In the landmark case of Golding vs. Armstrong , 97 So.2d 379, the Mississippi Supreme Court was called upon to make this distinction when a taxpayer brought suit to enjoin the State Auditor from issuing pay warrants to the Executive Director of the State Sovereignty Commission on the ground that he was holding the office in violation of constitutional provisions barring Senators and Representatives from holding an office of profit created during their term in the Legislature.

The Court cited an early case of Shelby vs. Alcorn , 36 Miss. 273, wherein in its opinion it was stated:

‘The term office has no legal or technical meaning attached to it, distinct from its ordinary acceptations. An office is a public charge or employment; but, as every employment is not an office, it is sometimes difficult to distinguish between employments which are, and those which are not offices. It is generally, if not universally true that a duty or employment arising out of a contract, and dependent for its duration and extent upon the terms of such contract is never considered an office. An officer, as defined by Blackstone, is a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, whether public, as those of magistrates, or private, as bailiffs, receivers, and the like. 2 Blacks. Com. 36. And it is laid down ‘that a public officer is one who has some duty to perform concerning the public; and he is not the less a public officer when his duty is confined to narrow limits, because it is the duty, and the nature of that duty, which makes him a public officer, and not the extent of his authority.’ 7 Bac.Ab. 280; Carthew, 479. And we apprehend that it may be stated as universally true, that where an employment or duty is a continuing one, which is defined by rules prescribed by law and not by contract, such a charge or employment is an office, and the person who performs it is an officer.

‘The Court further held that the term ‘office’ implies a delegation of the portion of the sovereign power, and the possession of it by the person filling the office; and the exercise of such power within legal limits, constitutes the correct discharge of the duties of such office.'

The Mississippi Supreme Court after a careful examination of House Bill No. 880, Chapter 365, Laws of 1956, which created the State Sovereignty Commission and with the above quoted definitions of ‘office’ and ‘officer’ that the Executive Director of the State Sovereignty Commission was not an office of profit and that te member of the Mississippi House of Representatives who held that position had not violated the prohibitions of Section 45 of the Constitution of 1890.

Specifically the Court held that the Representative was a ‘mere employee working at the pleasure and under the direction of the State Sovereignty Commission’. Senate Bill No. 1938, which was approved on March 26, 1973, amended Section 4004–05 of the Mississippi Code of 1942 to increase the number of employees of the Probation and Parole Board. (Emphasis added) This Bill provides in part:

‘The total number of employees of the board shall not exceed sixty four (64), thirty two (32) of whom shall be probation and parole officers; their salaries shall be provided by general law; and they shall be reimbursed for their actual, reasonable and necessary travelling expenses incurred in connection with the duties of the office. These employees shall be full-time employees.’

It is my opinion that Probation and Parole Officers are not ‘officers' under the definition of this word by the Mississippi Supreme Court. This office after the decision in Golding vs. Armstrong, supra, held by opinion that attorney-referees of the Workmen's Compensation Commission are ‘employees' and not ‘officers' and that a member of the Mississippi Legislature could accept an appointment as an attorney-referee on that Commission without violating Section 45 of the Mississippi Constitution.

In view of the foregoing authorities, it is my opinion that a member of a Board of Aldermen could be employed by the Probation and Parole Board without a conflict of interest or in violation of Section 2 of the Mississippi Constitution.

Trusting that this answers your inquiries and with all good wishes, I am

Sincerely,

A. F. SUMMER, ATTORNEY GENERAL

Guy N. Rogers Assistant Attorney General

May 14, 1979

Mr. Gale Martin, Executive Director

Mississippi State Soil & Water Conservation Commission

754 North President Street

Jackson, Mississippi 39202

Re: Conflict of Interest § 2, Mississippi Constitution of 1890

Dear Mr. Martin:

Your letter request of May 2, 1979, addressed to Honorable A. F. Summer, Attorney General, has been received and assigned to this writer for research and reply. Your letter states:

‘At a recent meeting of the Mississippi State Soil and Water Conservation Commission, it was brought to the attention of the Commission, several people throughout the state who are now serving as Commissioners of the Soil and Water Conservation Districts, or persons who might be recommended or elected through the proper process, as a Soil and Water Conservation District Commissioner, would be running for either state office or a member of the Legislature, or County Board of Supervisors, or any other county offices.

‘We need an opinion from you, the Attorney General, as to if these persons, if elected, can serve in both capacities. Several districts throughout the state have asked this question. We feel that we cannot give them a correct answer on this until we have heard from you.

‘As you are aware, the State Soil and Water Conservation Commission holds the elections for Soil and Water Conservation Districts, and that these districts are considered enmities of the State Government.

‘I know that there have been several occasions where this could possibly be considered a conflict of interest, and I would appreciate an opinion on this from you.’

The holding of incompatable offices is prohibited by Section 2 of the Mississippi Constitution which reads:

‘No person or collection of persons, being one or belonging to one of these departments, (Legislative, Judicial and Executive—See § 1 of Constitution) 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.’

It is our opinion that so long as the offices are in the same branch of government there is nothing in the Constitution or statutes to prevent a person serving in both capacities.

Sincerely yours,

A. F. SUMMER, ATTORNEY GENERAL

John M. Weston Special Assistant Attorney General.