MS 2020-07-A-HudsonJr-June-26-2020-Separation-of-Powers 2020-06-26

Can the same person serve as a Mississippi county administrator and a member of the Mississippi House of Representatives at the same time?

Short answer: Yes, under the Mississippi separation of powers doctrine. The AG concluded that a county administrator does not exercise 'core powers,' so simultaneous service as a state representative is not constitutionally barred. Ethics-law conflicts are a separate question that goes to the Mississippi Ethics Commission.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

Representative Abe Hudson asked whether one person could lawfully hold the position of county administrator while also serving as a member of the Mississippi House of Representatives. The Attorney General said yes, the dual service does not violate the Mississippi separation of powers doctrine.

The reasoning turns on the "core powers" test the Mississippi Supreme Court adopted in Alexander v. State and Dye v. State. Under that test, a person who exercises core powers in one branch cannot simultaneously hold a position in another branch that also exercises core powers. A state representative does exercise legislative core powers. But the Mississippi Court of Appeals held in Zimmerman v. Three Rivers Planning & Development District that a county administrator does not exercise core powers within the executive branch. Because one of the two positions falls outside the doctrine, simultaneous service is allowed.

The AG flagged a separate concern: ethics in government, conflict-of-interest rules, and similar restrictions are administered by the Mississippi Ethics Commission, not by the AG. So clearance under the separation of powers doctrine is not the same as clearance under the Ethics in Government Law.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Mississippi's separation of powers framework comes from Article 1, Sections 1 and 2 of the Mississippi Constitution of 1890. Section 1 divides government into three branches; Section 2 prohibits any person belonging to one branch from exercising the powers of another except in cases the Constitution itself permits.

The Mississippi Supreme Court built the modern dual-office-holding test in two cases. Alexander v. State by and through Allain, 441 So. 2d 1329 (Miss. 1983), addressed legislative service combined with executive positions. Dye v. State, 507 So. 2d 332 (Miss. 1987), refined the analysis by introducing the "core powers" concept. Under that line of cases, a position only triggers the separation of powers bar if its duties are "ongoing and are in the upper level of governmental affairs" and have a "substantial policy-making character."

Applied to county administrators, the Court of Appeals concluded in Zimmerman v. Three Rivers Planning & Development District, 747 So. 2d 853 (Miss. Ct. App. 1999), that the role is administrative rather than core-policy, even though it sits within the executive branch. The AG had relied on the same Zimmerman holding in an earlier 2020 opinion to attorney Liner. Membership in the Mississippi House, by contrast, is core legislative power, the AG having taken that position consistently across opinions to Johnson (March 6, 2015) and Kemp (August 6, 2004). With one core and one non-core position, the doctrine is not violated.

The AG declined to address the separate question of ethics in government because the Mississippi Ethics Commission, not the AG, administers Miss. Code Ann. § 25-4-105 and related conflict-of-interest provisions.

Common questions

Q: What does the "core powers" test actually require?
A: A position exercises core powers when its duties are ongoing, sit at the upper level of governmental affairs, and have a substantial policy-making character. A line-item administrative job, even an important one, can fall outside the doctrine. A state legislator's vote on legislation is the textbook example of a core power.

Q: If two non-core positions are involved, is that always fine?
A: Under this opinion's logic, yes. The doctrine bars two core positions from being held by the same person. If either side falls below the core threshold, the bar does not apply, though other statutes (incompatibility statutes, ethics rules) may still prohibit the combination.

Q: Is this the same as the federal "incompatible offices" rule?
A: No. Mississippi's analysis is governed by Article 1, Sections 1 and 2 of the state constitution and the Alexander/Dye/Zimmerman line of cases. The federal Incompatibility Clause and federal common-law doctrines apply only to federal offices.

Q: What about conflicts of interest under Miss. Code Ann. § 25-4-105?
A: That question is for the Mississippi Ethics Commission, not the Attorney General. The AG's separation-of-powers analysis does not screen for or rule on ethics conflicts.

Citations and references

Constitutional provisions:
- Mississippi Constitution Article 1, Sections 1 and 2 (separation of powers)

Cases:
- Dye v. State, 507 So. 2d 332 (Miss. 1987), defining "core powers" as upper-level, policy-making, ongoing duties
- Alexander v. State by and through Allain, 441 So. 2d 1329 (Miss. 1983), foundational Mississippi separation-of-powers analysis
- Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So. 2d 853 (Miss. Ct. App. 1999), county administrator does not exercise core powers

Source

Original opinion text

June 26, 2020

Honorable Abe M. Hudson, Jr.
Mississippi Representative, House District 29
Post Office Box 564
Shelby, Mississippi 38744

Re: Separation of Powers

Dear Representative Hudson:

The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.

Question Presented

Is it a violation of the separation of powers doctrine for an individual to simultaneously hold the positions of County Administrator and State Representative?

Brief Response

Serving as county administrator and a member of the Mississippi House of Representatives would not result in a violation of the separation of powers doctrine. However, the matter may involve the State's Ethics in Government Law. Matters involving ethics in government are delegated to the Mississippi Ethics Commission.

Applicable Law and Discussion

The separation of powers doctrine places limitations on an individual's ability to serve simultaneously in different branches of government. See Article 1, Sections 1 and 2, Miss. Const. (1890).

To determine if two positions would violate this doctrine, a determination must be made in which branch of government each job falls and if the position exercises core powers. A person who exercises "core powers" in one branch of government cannot simultaneously hold a position in another branch of government if that position also exercises "core powers." "Core power" has been defined by the Court to include those circumstances "where the acts are 'ongoing and are in the upper level of governmental affairs' and have a substantial policy-making character." Dye v. State, 507 So. 2d 332 (Miss. 1987) (quoting Alexander v. State by and through Allain, 441 So. 2d 1329, 1337 (Miss. 1983)).

This office has consistently opined that a member of the Mississippi House of Representatives exercises core powers in the legislative branch. See, MS AG Op., Johnson (March 6, 2015); MS AG Op., Kemp (August 6, 2004). While the county administrator is a member of the executive branch, the Mississippi Court of Appeals has held that the county administrator does not exercise core powers. Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So. 2d 853, 860 (Miss. Ct. App. 1999); see also, MS AG Op., Liner (January 31, 2020). Therefore, serving as a member of the Mississippi House of Representatives and the county administrator would not result in a violation of the separation of powers doctrine.

To ensure the absence of a conflict of interest and/or other ethical considerations implicated by serving in these two positions simultaneously, you may seek to contact the Mississippi Ethics Commission.

If we may be of any further assistance to you in the future, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Kim P. Turner
Kim P. Turner
Assistant Attorney General