Mississippi Advisory Opinions February 17, 2017: AGO 2017-00023 (February 17, 2017)

Advisory Opinion Text

AUTH: Beebe Garrard

RQNM: Jeffery Harness

SUBJ: Elections - Primaries

SBCD: 70

TEXT: Jeffery Harness, Esq.

Attorney for the Town of Fayette

P.O. Box 758

Fayette, MS 39069

Re: Municipal Executive Committee

Dear Mr. Harness:

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

Facts

In your request, you provide that Fayette municipal elections have historically been non partisan. You further provide that “Recently the Jefferson County Democratic Executive Committee held a meeting in which they created an executive committee to serve the municipality in order to hold a democratic primary for the upcoming election for mayor and board of aldermen.” You then ask five questions, which we answer seriatim.

Questions Presented and Response

1 . What are the qualifications for persons to serve on a County and Municipal executive committee?

Response : Our office has previously opined that “since municipal party executive committees are statutorily charged with the responsibility of conducting municipal primaries in accordance with state law, membership on said committees does constitute serving in a position of public trust.” MS AG Op., James (October 18, 2002). This would apply to county party executive committees as well. “Section 44 of the Mississippi Constitution of 1890 provides that ‘no person shall be eligible. . . . to any office of profit or trust, who shall have been convicted of bribery, perjury, or other infamous crime. . . .’ By statutory definition (Sections 1-3-11 and -19) ‘felony’ and ‘infamous crime’ are synonymous and mean offenses punished ‘with death or confinement in the penitentiary’.” MS AG Op., Wiggins (March 13, 1984). Additionally, in 2010, Miss. Code Ann. Section 23-15-313(3) was amended to provide: “A person who has been convicted of a felony in a court of this state or any other state or a court of the United States, shall be barred from serving as a member of a municipal executive committee.”(2010 Miss. Laws Ch. 428 (H.B. 1347)). The Legislature broadened this prohibition in 2010 with the addition of Section 25-1-115(1), which currently reads:

No person shall serve on any temporary municipal executive committee, municipal executive committee, temporary county executive committee, county executive committee or state executive committee if the person has been convicted of any criminal violation of the Mississippi Election Code, has been convicted of an election crime in this state or any other state, has been convicted of any felony in this state or any other state, has been convicted of an election crime under federal law, has been removed from public office pursuant to Section 25-5-1, or who has resigned from office as part of a plea agreement.

Additionally, Section 23-15-263(2) provides:

A member of a county executive committee shall be automatically disqualified to serve on the county executive committee, and shall be considered to have resigned therefrom, upon his qualification as a candidate for any elective office. The provisions of this subsection shall not apply to a member of a county executive committee who qualifies as a candidate for a municipal elective office.

Therefore, in order for a person to serve on a party executive committee, he must be a qualified elector of the municipality or county he seeks to serve and may not have been convicted of any criminal violation of the Mississippi Election Code, an election crime in this state or any other state, any felony in this state or any other state, an election crime under federal law, or have been removed from public office pursuant to Section 25-5-1, or resigned from office as part of a plea agreement (Sections 25-1-115 and 23-15-313). Additionally, if a member of a county executive committee qualifies for any elective office, other than a municipal elective office, he shall be considered to have resigned his position on the county executive committee (Section 23-15-263(2)).

2 . Is it possible for a person to serve on said committee if that person has been convicted of a felony crime?

Response : No. Please see our response to Question 1.

3 . Is it possible to serve on the Municipal Executive Committee if you do not reside within the City limits?

Response : Municipal Executive Committee members must be qualified electors (registered voters) within the municipality they seek to serve. (Section 25-15-313(1)). The one exception to this could occur if the County Executive Committee serves as the temporary Municipal Executive Committee in accordance with Section 25-15-313(2).

4 . What is the proper procedure, i.e., public notice, publications etc., that has to take place in order to create a municipal executive committee?

Response: “A legitimate [municipal executive] committee may be one duly elected in a municipal primary election in accordance with Section 23-15-171, a legitimate temporary executive committee established pursuant to Section 23-15-313(1) or the county party executive committee of the county wherein the municipality is located that has agreed to serve as the temporary municipal executive committee pursuant to Section 23-15- 313(2).” (For further discussion, see MS AG Op., Collins (October 2, 2015).)

5 . What is the process that one would have to take in order to request the Attorney General's office or the District Attorney's Office file a Quo Warranto against persons holding positions on said committee?

Response : In response to your first question, we opined that since municipal party executive committees are statutorily charged with the responsibility of conducting municipal primaries, membership on such committees constitutes serving in a position of public trust. However, we are further of the opinion that such positions are not “public offices” as contemplated by the quo warranto statutes (Sections 11-39-1, et seq.) Rather, those positions are political party positions that are elected or selected by the respective party faithful as opposed to being elected by the general population of qualified electors. Therefore, the statutory quo warranto provisions are, in our opinion, not applicable to persons holding positions on a political party’s executive committee.

If we may be of further service, please let us know.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

Beebe Garrard, Special Assistant Attorney General