Mississippi Advisory Opinions March 31, 1987: AGO 000007811 (March 31, 1987)

AGO 000007811.

Dear Mr. Haltom:

Attorney General Pittman has received your letter of request and has assigned it to me for research and reply. Your letter presents three (3) questions which we will address in sequence:

QUESTION 1: "Can a sitting member of the Board of Aldermen be a member of Municipal Democratic Committee even though he will not be a candidate for re-election?

RESPONSE: Please see the enclosed copy of an opinion of this office issued to Ms. Jimmie Lou Humphrey, dated January 5, 1984. In summary that opinion states that there is no prohibition against a public official serving on such executive committee as long as such official will not be a candidate in a primary election.

QUESTION 2: "Can a teacher in the Municipal Separate School District run and be elected to the Office of Alderman of the City of Indianola, and if elected still remain a public school teacher?"

RESPONSE: There is no prohibition per se against a public school teacher qualifying as a candidate for the office of city alderman. However, if elected the public school teacher may be in violation of the separation of powers provision of the Mississippi Constitution of 1890 and may ultimately be in violation of Section 109 of said constitution.

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.

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 teacher is in the executive department of government.

In 1984, the Mississippi Supreme Court stated that 'a person cannot be a part of [two] branches [of government] at the same time" and specifically held that a justice court judge (officer in the judicial department) could 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 public school teacher from also serving as a city alderman.

As to a violation of Section 109 of the Mississippi Constitution of 1890, please see the enclosed opinion of this office issued to the Honorable David Jordan, dated March 25, 1987. In summary that opinion states that if all of the local funding portion of the salary derived by a teacher (who also is a city alderman) under his teaching contract with the municipal school district comes from a mandatory tax levy passed by the city board of aldermen, such a teaching contract does not violate Section 109. However, if said local tax levy is a discretionary matter for determination by the board of alderman, Section 109 is violated by the teacher/alderman.

QUESTION 3: "Can an officer and stockholder of a local bank be elected as a city alderman where said bank serves as one of two depositories for the city's funds?"

RESPONSE: There is no prohibition per se against an officer and stockholder of such a local bank qualifying as a candidate for the office of city alderman. However, if elected and if the local bank continues to serve as a municipal depository, the bank officer will violate Section 109 of the Mississippi Constitution of 1890.

In the consolidated cases of Frazier and Knox v. State By and Through Pittman, Miss. Supreme Ct. No. 57,359 (decided March 4, 1987) and Logan, et al. v. State By and Through the Mississippi Ethics Commission, et al., Miss. Supreme Ct. No. 57,642 (decided March 4, 1987), the Court held at pages 52 and 57:

Regarding Knox we first deal with the question of whether or not he, as a county board member who selected the county depositories, has 'authorized' that contract within the meaning of 109. We hold he has.

The entry of an order on the minutes of the county board of supervisors is essential to the validity of a contract. Burt v. Calhoun, 231 So.2d 496, 498 (Miss. 1970) The orders entered by the Panola County Board of Supervisors specifically stated that the board `will receive bids and award contracts for the privilege of keeping the county funds.' Pursuant to these orders, two banks in which Knox was interested became county depositories. Therefore, it is clear that the order of the county board `authorized' these depository contracts.

It follows that Knox, as a county board member who authorized depository contracts between the county board and banks in which he was an officer and a stockholder, was in violation of 109. To the extent that Miss. Code Ann. 25-4-105(3) (a) attempts to provide for an exception to 109, it is in conflict and therefore unconstitutional.

Like the county board member, the city alderman is a member of the city board which has the authority and responsibility to select a municipal depository by entry of an order on its minutes authorizing the contract between the city and the bank chosen for the keeping of the funds of the city.

Very truly yours,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY:

Pete J. Cajoleas Assistant Attorney General

PJC/lcm Enclosure