Mississippi Advisory Opinions March 27, 2015: AGO 2015-00063 (March 27, 2015)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Mayor Scott Phillips

SUBJ: Separation of Powers

SBCD: 271

TEXT: Mayor Scott B. Phillips

City of Olive Branch

9200 Pigeon Roost

Olive Branch, Mississippi 38654

Re: Separation of Powers

Dear Mayor Phillips:

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

Issues Presented

You cite our opinion to Gary Yarborough, Jr., dated July 20, 2011, wherein we opined that it would be a violation of the doctrine of separation of powers for a municipal public works director to simultaneously serve as a member of a county board of supervisors and then present two (2) questions:

1) Does the position stated in your 2011 opinion to Yarborough remain the position of your office? In other words, if the Olive Branch Public Works Director is elected to the office of County Supervisor in Marshall County, would he, upon taking the oath of office as Supervisor vacate his position as Public Works Director?

2) Is the position of your office affected in any respect by the fact that the employment is in one county (DeSoto), while the elected office is in another (Marshall)?

Responses

Response to Question 1: Yes. It remains the opinion of this office that a municipal public works director, being in the executive branch of government and exercising "core powers", may not simultaneously serve as a county supervisor which is in the judicial branch of government. However, as we stated in the Yarborough opinion, it is ultimately a factual question as to whether a particular public works director exercises "core powers."

Response to Question 2: The fact that an individual is employed as the public works director of a municipality located in one county and is a candidate for county supervisor in another county does not affect our opinion.

Applicable Law

Article 1, Sections 1 and 2 of the Mississippi Constitution of 1890 provide:

Section 1. Powers of government

The powers of 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.

Section 2. Encroachment of power

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 Mississippi Supreme Court has held that no officer of one branch of government may perform a function "at the core" of the power properly belonging to either of the other two branches of government. Alexander v. State By and Through Allain, 441 So.2d 1329 (Miss. 1983).

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.