Mississippi Advisory Opinions July 29, 1988: 19880729 (July 29, 1988)

Advisory Opinion Text

Mr. L.C. Jones

Post Office Box 336

Rolling Fork, Mississippi 39159

Dear Mr. Jones:

Attorney General Mike Moore has received your request for an opinion and has assigned it to the undersigned for research and reply.

In your letter you ask the following:

“Presently I am serving on the Board of Trustee for the Sharkey-Issaquena School District. I would like to run for Board of Alderman. I need to know if these positions are the same branch of government or would I have to resign from the School Board.”

There is no prohibition per se against a school board member qualifying as a candidate for the office of city alderman. However, if elected, the member of the board of trustees may be in violation of the separation of powers provision 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 magistrate, 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.

The office of alderman is in the legislative department of government. See City of Jackson v. Freeman-Howie, Inc., 239 Miss. 84, 121 So.2d 120 (1960) . Although not an office, the position of a member of the board of trustees is in the executive department of government.

In 1984, the Mississippi Supreme Court stated that “a person can not be a part of [2] branches of [government] at the same time” and specifically held that a justice court judge (officer in the judicial department) can not also serve as municipal police officer (employee in the executive department). In re Anderson, 447 So.2d 1275 (Miss.1984) . Therefore, it appears that this court decision would preclude a member of the board of trustees for the Sharkey-Issaquena School District from also serving as a city alderman.

If this office can be of further assistance on this or other matters, please let us know.

Sincerely,

Mike Moore, Attorney General.