MS 2020-09-C-Drake-August-31-2020-Municipal-Authority-to-Appoint-Private-Board-Members August 31, 2020

Can a Mississippi mayor or alderman serve on a private board the city helped create as part of a public-private partnership?

Short answer: The AG concluded that Port Gibson, under its municipal home-rule authority, could appoint members (including a sitting mayor or alderman) to a private board created by a public-private partnership agreement, and the separation-of-powers doctrine was not implicated. The Ethics in Government Laws still had to be checked separately.

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 AG opinions are persuasive authority but not binding precedent.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

The City of Port Gibson, designated as a federal Qualified Opportunity Zone under the Tax Cuts and Jobs Act of 2017, signed a Public-Private Partnership Agreement with an out-of-state corporation (HESCO) to produce liquefied natural gas in the Zone. The agreement created a five-member governing board: two appointees from the city, two from HESCO, and a fifth chosen jointly. The city attorney asked whether Port Gibson could appoint members at all and, if it could, whether a sitting alderman or mayor could fill one of the seats.

The AG worked the question in three layers:

Past versus prospective. The AG noted right at the start that opinions are limited to prospective state-law questions (Section 7-5-25). Port Gibson had already entered the Agreement, so the AG could neither validate nor invalidate that past action, and it could not interpret the contract.
Federal law. The AG declined to opine on the Tax and Jobs Cuts Act of 2017 because the office cannot interpret federal law.
State law guidance. Two general points. First, under Mississippi's municipal home-rule statute, Section 21-17-5, a board of aldermen has authority to adopt orders, resolutions, or ordinances on municipal affairs, property, and finances that are not inconsistent with state law. Earlier opinions had recognized that public boards may appoint members to private boards (e.g., the State Board of Education appointing a private foundation's directors). The AG read those threads to mean Port Gibson's aldermen had home-rule authority to appoint members to a private board created by a public-private partnership.

Second, separation of powers (Miss. Const. art. I §§ 1-2; Dye v. State, 507 So. 2d 332 (Miss. 1987)) was not violated when a mayor or alderman simultaneously served as a member of a private board. The doctrine prevents a person from exercising "core powers" in two branches of government, and a private nonprofit board is not a branch of government. A 1993 AG opinion (Bishop, Jan. 20, 1993) had said exactly that for a county supervisor sitting on a private nonprofit's directorship.

The opinion still pointed Port Gibson back to the Mississippi Ethics Commission. Whether the activities raised conflict-of-interest concerns under the Ethics in Government Laws (Sections 25-4-101 et seq.) was not something the AG would resolve.

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.

Common questions

What is "home rule" for Mississippi cities?

Section 21-17-5 grants municipal governing authorities the power to adopt orders, resolutions, or ordinances "with respect to such municipal affairs, property and finances which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi." It is an affirmative grant of broad local authority, capped only by what the state has already preempted.

Why doesn't separation of powers stop a sitting elected official from serving on a private board?

Because separation of powers is a state-government doctrine. It bars one person from holding "core powers" across two government branches at once. A private nonprofit board does not exercise government core powers. The Mississippi Supreme Court's articulation comes from Dye v. State, 507 So. 2d 332 (Miss. 1987). A 1993 AG opinion (Bishop) applied the same reasoning to a county supervisor on a private nonprofit board.

What is an Opportunity Zone?

A federal designation created by the Tax Cuts and Jobs Act of 2017 that gives certain tax incentives for investment in qualifying low-income communities. The AG opinion does not analyze the federal scheme; it just notes its existence as the backdrop for the partnership.

What still needs separate review?

Two things. The contract itself, which the AG cannot interpret. And the Mississippi Ethics in Government Laws (Sections 25-4-101 et seq.), which Port Gibson had to check with the Mississippi Ethics Commission.

Background and statutory framework

Section 21-17-5(1) is the home-rule grant:

In addition to those powers granted by specific provisions of general law, the governing authorities of municipalities shall have the power to adopt any orders, resolutions or ordinances with respect to such municipal affairs, property and finances which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi, and shall likewise have the power to alter, modify and repeal such orders, resolutions or ordinances.

The AG combined that grant with two prior opinions, Thompson (May 17, 2001) and Brown (Sept. 21, 1989), each finding that public bodies could appoint members of private boards. There is no statute prohibiting a municipal board from doing so. Home rule fills the rest of the gap.

For the separation-of-powers piece, the operative authorities are MISS. CONST. art. I §§ 1-2 and Dye v. State, 507 So. 2d 332 (Miss. 1987). The doctrine forbids "an individual from simultaneously exercising core powers, meaning those which relate to acts at the upper level of governmental affairs and have a substantial policy-making character, in two different branches of the government." Bishop (Jan. 20, 1993) had already concluded that no separation-of-powers issue arises when an elected official sits on a private nonprofit board.

The opinion is signed by Special Assistant Attorney General Beebe Garrard on behalf of Attorney General Lynn Fitch.

Citations

Miss. Code Ann. § 21-17-5 (municipal home rule)
Miss. Code Ann. § 7-5-25 (limits on AG opinions)
MISS. CONST. art. I §§ 1-2 (separation of powers)
Miss. Code Ann. §§ 25-4-101 et seq. (Ethics in Government Laws)
Dye v. State, 507 So. 2d 332 (Miss. 1987)
MS AG Op., Thompson at *1 (May 17, 2001)
MS AG Op., Brown at *1 (Sept. 21, 1989)
MS AG Op., Bishop at *1 (Jan. 20, 1993)

Source

Original opinion text

August 31, 2020

Carmen Brooks Drake, Esq.
City Attorney, City of Port Gibson
Post Office Box 448
Natchez, Mississippi 39120

Re: Municipal Authority to Appoint Private Board Members

Dear Ms. Drake:

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

Question Presented

May the City of Port Gibson appoint members to a public/private board created pursuant to a Partnership Agreement and, if so, may a sitting alderman or the mayor be appointed to serve as a member on said board?

Background Facts

In connection with its designation as a Qualified Opportunity Zone ("Zone"), created pursuant to the Tax Cuts and Jobs Act of 2017, the City of Port Gibson has entered into a Public-Private Partnership Agreement ("Agreement") with an out-of-state corporation to produce liquified natural gas ("LNG") in the Zone.

As set forth in your request, the Agreement states as follows:

The Zone will be governed by a separate board, sanctioned by [Port Gibson] to oversee the business interest of the Zone under the terms of this Agreement. The Board shall consist of five (5) members.

[Port Gibson] shall appoint two (2) members of the Board and HESCO shall appoint two (2) members of the Board. The members selected by HESCO and [Port Gibson] shall together appoint one (1) member of the Board.

Brief Response

Pursuant to Mississippi Code Section 7-5-25, opinions of this office are limited to prospective questions of state law. As Port Gibson has already entered into the Agreement, this opinion can neither validate nor invalidate the past action of the city, nor may we interpret the provisions of the Agreement.

We offer no opinion on the Tax and Job Cuts Act of 2017, as the Office of the Attorney General cannot interpret federal law.

With respect to the applicability of state law, we offer the following general guidance:

Pursuant to its home rule authority, a board of aldermen may appoint an individual to serve as a board member of a private entity.
The separation of powers doctrine is not violated by a mayor or member of the board of aldermen serving in his or her capacity as an elected official while simultaneously serving as a board member of a private entity. However, we suggest you contact the Mississippi Ethics Commission to determine whether the Ethics in Government Laws are implicated by the activities mentioned in your request.

Applicable Law and Discussion

Our office has previously opined that certain public boards have the authority to appoint individuals to serve as members of private boards. See MS AG Op., Thompson at 1 (May 17, 2001) (finding a private, not-for-profit foundation did not lose its status as an independent nonprofit organization merely because its directors were appointed by the State Board of Education.); MS AG Op., Brown at 1 (Sept. 21, 1989).

The municipal "home rule" statute provides, in relevant part:

In addition to those powers granted by specific provisions of general law, the governing authorities of municipalities shall have the power to adopt any orders, resolutions or ordinances with respect to such municipal affairs, property and finances which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi, and shall likewise have the power to alter, modify and repeal such orders, resolutions or ordinances.

Miss. Code Ann. § 21-17-5. There is no statutory prohibition against a municipal board of aldermen appointing members of a private board. Thus, it is the opinion of this office that pursuant to home rule, a municipal board of aldermen has authority to appoint members to a private board.

Turning to your second question, the separation of powers doctrine prohibits an individual serving in one branch of government from exercising power in another branch of government. MISS. CONST. art. I §§ 1-2. The Mississippi Supreme Court has interpreted these constitutional provisions as precluding an individual from simultaneously exercising core powers, meaning those which relate to acts at the upper level of governmental affairs and have a substantial policy-making character, in two different branches of the government. Dye v. State, 507 So. 2d 332 (Miss. 1987).

We have previously opined that the separation of powers doctrine is not implicated by a public official simultaneously serving in an elected office and as a board member of a private entity. MS AG Op., Bishop at *1 (Jan. 20, 1993) ("[I]t is our opinion that since the supervisor would be serving on the board of directors of a private non-profit organization, there can be no separation of powers problem."). However, as your question raises possible ethical issues under Sections 25-4-101 et seq., we refer you to the Mississippi Ethics Commission to determine whether the Ethics in Government Laws are implicated.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,
LYNN FITCH, ATTORNEY GENERAL

By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General