May a Mississippi board of aldermen appoint members to a private board, and does an elected official's service there violate separation of powers?

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 federal opportunity-zone law because the office cannot interpret federal law.
• State law guidance. Two general points. First, under Mississippi's municipal home-rule statute, § 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 discussed public boards appointing members to private boards. The AG gave general guidance that a municipal board of aldermen may appoint individuals to a private board under home rule, while declining to interpret Port Gibson's agreement or validate its past action.

Second, separation of powers (Miss. Const. art. I §§ 1-2; Dye v. State, 507 So. 2d 332 (Miss. 1987)) is not violated solely because a mayor or alderman also serves on a private board. The doctrine concerns exercising core powers in two branches of government; the opinion treats the outside board as a private entity. 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?

§ 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." The AG relied on that grant, together with the absence of a statutory prohibition, for its general appointment guidance.

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. The opinion says an elected official's service on a private board does not implicate the doctrine. It does not decide whether Port Gibson's particular agreement creates another legal issue. 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?

The opinion says Port Gibson had been designated a Qualified Opportunity Zone under a federal law and entered an LNG partnership agreement in connection with that designation. The AG expressly declined to interpret the federal law.

What still needs separate review?

The AG did not interpret or validate the existing agreement. It referred possible issues under the Ethics in Government Laws (Sections 25-4-101 et seq.) to the Mississippi Ethics Commission.

Background and statutory framework

§ 21-17-5 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. The AG found no statute prohibiting a municipal board from appointing members to a private board. Its conclusion was general guidance, separate from the existing partnership agreement.

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

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/09/C.Drake_August-31-2020-Municipal-Authority-to-Appoint-Private-Board-Members.pdf

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:

1. Pursuant to its home rule authority, a board of aldermen may appoint an individual to serve as a board member of a private entity.

2. 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