MS 2020-12-C-Palmer-December-8-2020-Simultaneous-service-on-school-boards December 8, 2020

Can the same person serve on a public school board and a charter school board in Mississippi at the same time?

Short answer: The 2020 opinion concluded that simultaneously serving on a public school board and a charter school board did not violate Mississippi's separation of powers doctrine, because both positions are in the executive branch. The same answer applied even if both schools were located in the same county. The AG cautioned, however, that conflict-of-interest and ethics questions had to be reviewed by 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 AG opinions are persuasive authority but not binding precedent.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

The attorney for the Clarksdale Municipal School District asked whether one person could sit simultaneously on a traditional public school board and on a charter school board, and whether the answer changed if both schools were in the same county.

The AG focused on the separation-of-powers question. Mississippi's Constitution prohibits a person from holding office in more than one branch of government at the same time, but the test (from Dye v. State) is whether the offices belong to different branches. The AG concluded that both school boards belong to the executive branch, so dual service is not a separation-of-powers problem. Same county or different county does not change that.

The AG was careful to add a separate caution: conflict-of-interest issues are not a separation-of-powers issue. Ethics questions, like whether the dual role would create financial entanglements between the two schools, contracts with shared vendors, or competing fiduciary duties, have to be reviewed by the Mississippi Ethics Commission, not the AG.

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.

What the opinion said for each audience, at the time

For people considering school board service in 2020

The constitutional barrier was clear of dual public-board / charter-board service. But "no separation-of-powers problem" was not the same as "no problem at all." Charter school operators often did business with traditional public school districts, sharing facilities, transportation, special-education services, or vendors. Each of those overlaps could create conflicts of interest under Miss. Code Ann. Title 25, Chapter 4 (the Ethics in Government Law). Anyone considering dual service had to file a Statement of Economic Interest with the Ethics Commission and seek an Ethics Commission opinion before accepting both positions.

For school board attorneys and superintendents

The opinion was a useful confirmation that the separation-of-powers question, often the first question asked about dual office-holding, was not a barrier here. Both boards live in the executive branch. The next question, whether ethics rules permitted the dual service, required a different review.

For charter school operators

The 2020 opinion clarified that recruiting board members who also served on traditional school boards was not categorically blocked by the constitution. That mattered because experienced education-policy people often had public-school board service in their backgrounds. The opinion did not endorse dual service, but did confirm there was no per-se constitutional bar.

For ethics counsel

Ethics counsel had to do the heavy lifting. The Ethics Commission's contracting prohibitions in § 25-4-105, definitions of "public servant," and rules on financial relationships between government officials and entities they supervise all needed analysis. The AG specifically declined that work and pointed to the Ethics Commission.

Common questions

Q: What is "separation of powers" and why did it come up here?
A: Mississippi's Constitution (Sections 1 and 2 of the 1890 Constitution) divides government into three branches and bars an officer of one branch from performing functions "at the core" of another branch's power. The Mississippi Supreme Court applied this in Dye v. State, 507 So. 2d 332 (Miss. 1987). When someone holds two offices, the first question is whether those offices are in different branches.

Q: Are charter school boards really in the executive branch?
A: According to the AG, yes. Mississippi had previously held that traditional school board members are executive-branch officers (citing the Simmons 2011 and Chaney 2003 opinions). The AG extended that reasoning to charter school board members, treating them as executive-branch officers as well.

Q: Did being in the same county matter?
A: No, per the opinion. Same county or different county, the separation-of-powers analysis was the same: both boards are in the executive branch, so no separation-of-powers violation. (Practical conflicts get worse in the same county, but that is an ethics question, not a constitutional one.)

Q: What ethics issues should someone considering dual service think about?
A: The Ethics Commission could weigh in on issues like: whether the charter school had financial relationships with the public school district, whether the person would have to vote on contracts that affected both schools, whether the person had family or business interests in either school, and whether the dual role created an appearance of self-dealing. The opinion did not answer these; it only flagged them.

Q: What if the public school district and the charter school had a contract?
A: Then ethics rules became the controlling concern. Section 25-4-105 has detailed prohibitions on contracts between public bodies and persons connected to those bodies. The Ethics Commission was the right place to get an answer specific to the contract structure and the person's roles on each board.

Background and statutory framework

Mississippi authorized public charter schools in 2013 (Miss. Code Ann. § 37-28-1 et seq.). Charter schools operate independently of traditional school districts under contracts with the Mississippi Charter School Authorizer Board. Their governing boards are separate from the traditional school district boards in their geographic area. As charter schools opened, questions naturally arose about overlap with traditional public school governance.

The separation-of-powers framework in Mississippi requires identifying which branch each office belongs to. School boards have always been treated as executive-branch bodies under Mississippi law because they administer state education laws and policies, rather than legislating or adjudicating. Extending that classification to charter school boards followed naturally: charter boards also administer state education policy, just within a different operational structure.

The opinion did not address other dual-office concerns, like statutes that specifically prohibit a person from holding two enumerated offices, or local board policies barring members from holding outside positions. Those would need separate review.

Citations and references

Constitutional provisions:
- Miss. Const. art. 1, §§ 1-2 (separation of powers)

Cases:
- Dye v. State, 507 So. 2d 332 (Miss. 1987), separation of powers doctrine, an officer of one branch may not perform a "core" function of another branch

Prior AG opinions cited:
- MS AG Op., Simmons (June 10, 2011), school board members are executive-branch officers
- MS AG Op., Chaney (May 16, 2003), same

Source

Original opinion text

December 8, 2020

Carlos D. Palmer, Esquire
Attorney for Clarksdale Municipal School District
Post Office Box 272
Greenwood, Mississippi 38935

Re: Simultaneous service on school boards

Dear Mr. Palmer:

The Office of the Attorney General has received your request for an official opinion.

Issue Presented

You ask if there is any legal prohibition against one serving simultaneously on a public school board and the board of a charter school. You further ask if it would make a difference if the two boards are within the same county.

Brief Response

Since all school boards are in the executive branch of government, there would be no violation of the separation of powers doctrine. This finding is unaffected by the fact that both boards govern schools located in the same county. However, potential violations of our conflict of interest laws must be addressed by the Mississippi Ethics Commission.

Applicable Law & Discussion

Sections 1 and 2 of the Mississippi Constitution of 1890, as interpreted by the Mississippi Supreme Court in Dye v. State, prohibit an officer of one branch of government from performing a function "at the core" of power belonging to either of the other two branches. 507 So. 2d 332 (Miss. 1987); MS AG Op., Simmons (June 10, 2011).

We have previously opined that a school board member is an officer of the executive branch of government. MS AG Op., Simmons at 1 (June 10, 2011); MS AG Op., Chaney at 1 (May 16, 2003). This office is of the opinion that a charter school board member is also an officer in the executive branch of government. Accordingly, since both boards are in the executive branch of government, there can be no separation of powers violation by simultaneously serving on both boards. This finding is unaffected by the fact that both boards govern schools located in the same county.

However, we caution that you should seek advice from the Mississippi Ethics Commission as to whether such dual service would or could result in a violation of Mississippi's laws governing ethics and conflicts of interest.

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/ Phil Carter
Phil Carter
Special Assistant Attorney General