Mississippi Advisory Opinions June 01, 1987: 19870601 (June 01, 1987)

Advisory Opinion Text

Maurine B. Horn, Esquire

Horn & Downs

Post Office Box 212

Carrollton, Mississippi 38917

Dear Ms. Horn:

Attorney General Pittman has received your letter of request for an official opinion and has assigned it to me for research and reply. In behalf of the Carroll County Superintendent of Education you present the following questions:

Is there any constitutional or legal obstacle to a teacher under teaching contract with the School Board being a candidate for County Supervisor?

If he were elected, would there be any constitutional or legal obstacles to his qualifying as Supervisor while still under contract with the School Board?

If a situation arose where he was required to perform some duty as Supervisor and at the same time he was required under his teaching contract to be at the school or be performing duties for the school, could he be legally excused from performing one or the other duty, and if so, which?

In response to your first question, there is no prohibition per se against a public school teacher qualifying as a candidate for the office of county supervisor.

In response to your second question, if the public school teacher were to be elected to the office of county supervisor, he or she may be in violation of the separation of powers provision and Section 109 of the Mississippi Constitution of 1890.

Article 1, Section 1 of the Mississippi Constitution of 1890, provides:

The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.

Article 1, Section 2 of the Mississippi Constitution of 1890, provides:

No person or collection of persons, being one or belonging to one of these departments, 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.

In the case of In Re Anderson , 447 So.2d 1275 (Miss.1984), the Mississippi Supreme Court held that a person cannot be a part of more than one branch of the government at the same time. The boards of supervisors are a part of the judicial department of the state. Haley v. State , 67 So. 498 (Miss.1915) . Although not holding an office, the position of public school teacher falls within the executive department of government. As it appears from a reading of the Anderson decision, a public school teacher would be precluded from also serving as a county supervisor.

As to a possible violation of Section 109 of the Mississippi Constitution, we refer you to the opinion issued by this office to Mr. David Jordon, dated March 25, 1987, a copy of which is enclosed. In summary that opinion states that a teacher cannot make a valid contract with a school district while he or she is on the board of the governing authority which makes such tax levies where a portion of the salary derived by the teacher under the teaching contract comes from discretionary local tax levies. Section 109 is violated by such a contract.

The answer to your third question is no. Section 267 of the Mississippi Constitution requires that an officer personally devote his time to the performance of the duties of the office. This section has been interpreted by the Mississippi Supreme Court to require that an officer devote such time as shall suffice for a full and faithful discharge of the duties of his office.

Sincerely yours,

Edwin Lloyd Pittman Attorney General.

Frankie Walton White Assistant Attorney General.