Mississippi Advisory Opinions January 11, 1995: AGO 000009636 (January 11, 1995)

AGO 000009636.

Dear Representatives Blackmon & Flaggs:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

"The purpose of this letter is to officially request the Attorney General's opinion as to whether the Initiative which will be placed on the November, 1995 General Election Ballot will limit the following:

1. The officials elected in 1995 to two terms in office;

2. The appointment of officials such as police chiefs, fire chiefs, city clerks, city administrators, city engineers, city attorneys, public works director, building inspectors and all other municipal department heads to two terms in office after 1995;

3. The appointment of county administrators, county attorneys, county engineers, county clerks, county bridge commissioners, Port Authority appointees and all other county department heads to two terms in office after 1995;

4. The appointment of school board members, school principals, school board attorneys, superintendents of schools to two terms in office after 1995;

5. The appointment of the Commissioner of the Institutions of Higher Learning and members of the Board of Trustees of State Institutions of Higher Learning to two terms in office after 1995;

6. The appointments made by the Governor to Boards and Commissions of the State of Mississippi to two terms in office after 1995;

7. The election of the members of the U.S. Senate, U.S. House of Representatives, their appointed Chief of Staff and other appointed staff to two terms in office after 1995; and

8. Federal appointees to offices in the State of Mississippi to two terms in office after 1995.

Further, please define the term, 'two terms' in office as stated in the Initiative."

The first six (6) questions appear to be related to subsection (1) of the "Initiative Proposal" filed pursuant to Mississippi Code Annotated, Sections 23-17-1 et seq. (Supp. 1994) (copy attached) and which provides:

"No person elected or appointed to any public office of this state, or any political subdivision thereof, shall be eligible to serve in that office more than two terms in succession. However, no person elected or appointed to the office of family court judge, county, chancery, or circuit court judge shall be eligible to serve in that office more than three terms in succession. At least fifty percent of one term to which another person was elected shall count as one term. This section shall take effect January 1, 1996."

In response to your inquiry, it appears clear that if the proposal as written becomes law as of January 1, 1996, the state and local public officials elected in November, 1995 would be limited to serving two (2) terms in succession.

As for persons appointed to the various municipal, county and state offices, the same limit would apply. However, whether or not a particular position is an office as opposed to employment is a question of fact that must be determined on a case by case basis. The courts have established some basic guidelines that must be considered in making those determinations. In Glover v. City of Columbus, 97 So. 2d 379 (1957) the Mississippi Supreme Court held that a "public officer" within the meaning of constitution provisions has a definite term of office and provisions for removal from office. In Glover, the Court said:

"A public officer, broadly speaking, is a person appointed or elected to perform a designated duty concerning the public. The duty which a municipal policeman is called on to discharge, of course, concerns the public; consequently, broadly speaking, he may be referred to as a public officer. But the fact that his duties concern the public does not, without more, bring him within the provisions of Sections 20 and 175 of the Constitution. In order to come within the meaning of these two sections of the Constitution, the officer's duty must be continuing, be 'defined by rules prescribed by law' (citations) to be discharged by him in his own right, and not by permission and under the supervision and control of another. (citations) Applying this definition to the provisions of the appellee's charter hereinbefore set forth, it will appear that members of the appellee's police force are not public officers within the meaning of either Section 20 or 175 of the Constitution; for they serve only by permission of appellee's mayor and city council, who not only prescribe their duties but supervise and control the performance thereof."

In Shelby v. Alcorn, 36 Miss. 273 (1858) the Court said:

"An office is a public charge or employment; but as every employment is not an office, it is sometimes difficult to distinguish between employments which are, and those which are not offices. It is generally, if not universally true that a duty or employment arising out of a contract, and dependent for its duration and extent upon the terms of such contract is never considered an office ...

In all of the cases relied upon by the appellant, the duties of the officer were prescribed by law, and also the terms of their offices were prescribed by law. The essential distinction between an employment and an office is that in an office the duties and powers are prescribed by law, while in a contract the duties and powers are either prescribed by contract or prescribed by some person having power and authority to direct the employee as to the services such employee shall perform." (emphasis ours)

In Sorey v. Kellett, 673 F. Supp. 817 (S.D. Miss. 1987) the federal district court in quoting State v. McLaurin, 131 So. 89, 90, 159 Miss. 188 (1930) said:

"A position is a public office, under all of the former decisions of this court, when it is created by law, with duties cast upon the incumbent which involve an exercise of some portion of the sovereign power, in the performance of which the public is concerned, and which are also continuing in their nature; while a public employment on the other hand, is a position which lacks one or more of the foregoing elements."

Your seventh and eighth questions relate to subsection (2) of the "Initiative Proposal" which provides:

"The name of any representative from the State of Mississippi to the United States Congress shall not be placed on the ballot for re-election at the primary, general, or special election if, by the end of his current term of office, that person will have served (or, but for resignation, would have served) in that office for three consecutive terms. At least one year of a term to which another person was elected shall count as one term.

The name of any senator from the State of Mississippi to the United States Congress shall not be placed on the ballot for re-election at the primary, general, or special election if, by the end of his current term of office, that person will have served (or, but for resignation, would have served) in that office for two consecutive terms. At least three years of a term to which another person was elected shall count as one term.

Nothing in this subsection shall be construed as preventing or prohibiting the name of any qualified voter of this state from casting a ballot for any federal legislative candidate by writing the name of that person on the ballot as allowed by applicable law, or from having such a ballot counted or tabulated, nor shall any provision of this article be construed as preventing or prohibiting any person from standing or campaigning for any elective office by means of a 'write-in' campaign.

This subsection shall take effect January 1, 1996, and is applicable thereafter to all persons whose names are submitted to the proper authorities for placement on the ballot for all primary, general, or special elections for all federal legislative offices, service prior to January 1, 1996 shall not be counted for purposes of this act.

The legislature may by law delay the effect of this subsection until twenty-one (21) states, not including the State of Mississippi, have acted so as to limit the terms of their congressmen in both houses of the United States Congress." (emphasis ours)

Since no service prior to January 1, 1996 can be counted for purposes of the "Initiative Proposal", a person elected U.S. Congressman would, if the initiative became law, be eligible to complete the current term which ends in January, 1997 and then serve three consecutive terms (or six years) thereafter. A U.S. Senator would, if the initiative became law, be eligible to serve the remainder of his current term (as of January, 1996) and then two additional terms (or twelve years). We note that subsequent to the effective date of the proposal, regarding congressmen, serving at least one year of a term to which another person was elected counts as one term, and regarding senators, serving at least three years of a term to which another person was elected counts as one term. We further note that, if adopted, the wording of paragraph (2) would prevent a congressman or senator from resigning prior to the end of a term to avoid being disqualified by the limits imposed therein.

We do not read the "Initiative Proposal" to be applicable to appointed federal office holders.

Concerning a definition of the term "two terms" we understand, as a general proposition, that it would mean the two consecutive, full terms occurring after the effective date of the "Initiative Proposal". This understanding is based on the general rule of statutory construction that statutes will be construed to have a prospective operation only, unless a contrary intention is manifested by the clearest and most positive expression. Fluor Corp. v. Cook, 551 So. 2d 897, 902 (1989).

Sincerely,

MIKE MOORE ATTORNEY GENERAL

By:

Phil Carter Assistant Attorney General

PC:sm