Can a Mississippi city alderman use a police radio to monitor police traffic without violating separation of powers?
Plain-English summary
Cleveland's board attorney asked whether the city could let an alderman possess and use a city-owned police radio to monitor police radio traffic. The alderman would not be giving orders to officers, would not become involved in day-to-day operations, and would use the radio to support policy-making. But the question raised separation-of-powers concerns: aldermen are legislative officials, while police chiefs (who control police operations) are executive officials.
The AG worked through Mississippi's separation-of-powers framework:
- Sections 1 and 2 of the Mississippi Constitution prohibit one branch's officials from performing core powers of another branch.
- A board of aldermen exercises core legislative branch powers.
- The police chief exercises core executive powers and "shall have control and supervision of all police officers" (§ 21-21-1).
- Section 21-3-15(2)(a) prohibits aldermen from giving orders to municipal employees (other than the alderman's personal staff).
The AG concluded that mere possession of a police radio was not itself a separation-of-powers violation. An alderman could legitimately want to understand law enforcement operations to inform policy decisions (e.g., budget allocations, hiring authorizations, oversight). Listening to the radio was not the same as commanding officers.
But the AG cautioned that the actions taken in response to radio information could violate the doctrine. If the alderman heard a call about a specific incident and started directing officers, calling the chief to demand a particular response, or showing up at scenes to take charge, that would be involvement in daily operations and a separation-of-powers violation.
The opinion also flagged that federal law (FCC regulations on radio licenses) and the specific terms of the radio license might independently affect whether the alderman could possess the radio. The AG declined to address those federal issues.
Currency note
This opinion was issued in 2021. 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 Mississippi aldermen interested in police oversight
In 2021, the framework was: passive monitoring of police activities is acceptable; active intervention is not. Aldermen could:
- Receive briefings from the chief
- Review reports
- Set policy through ordinances and budget decisions
- Possess and listen to police radios
But they could not:
- Direct specific arrests or investigations
- Order officers to or away from particular incidents
- Bypass the chief's command authority
- Disclose confidential information from radio traffic
- Compromise ongoing investigations
For Mississippi police chiefs
The opinion preserved the chief's day-to-day authority. The chief still ran operations under § 21-21-1. Aldermen with radios still had to channel any operational concerns through the chief, not directly to officers.
For city attorneys advising on alderman conduct
The 2021 framework gave a clear test: focus on actions taken, not on tools possessed. An alderman's possession of a radio did not by itself create liability or a separation-of-powers issue. But the alderman's actions in response to radio traffic could.
For citizens watching municipal governance
The opinion balanced two legitimate interests: the alderman's interest in informed policy-making (and democratic accountability) and the police chief's interest in operational autonomy. Possession of the radio served the first; restraint in actions served the second.
For attorneys handling claims related to alderman conduct
Plaintiffs alleging alderman interference with police operations had to point to specific actions, not just access to information. The 2021 opinion provided a useful framework for analyzing whether specific alderman conduct crossed the line.
Common questions
Q: Why does separation of powers apply to municipal government?
A: Mississippi's separation-of-powers doctrine, derived from Article 1, §§ 1-2 of the state constitution, applies generally across all levels of state and local government. Within municipal government, the legislative function (aldermen, board) is separate from the executive function (mayor, police chief). The same principles that prohibit a state legislator from also serving as a state executive officer prohibit an alderman from also performing executive functions like running the police department.
Q: What's a "core power" in this context?
A: A function central to the operation of one branch of government. Issuing arrest warrants, conducting investigations, supervising officers, and making law enforcement decisions are core executive powers. Setting budgets, passing ordinances, and overseeing through committee inquiries are core legislative powers. Mixing them, with an alderman ordering officers around, would violate the doctrine.
Q: Could the alderman attend ride-alongs or visit the police station?
A: The AG did not address that specifically. Generally, observation and policy oversight are legitimate. Becoming a "shadow officer" who interferes with operations is not. The line is the same: passive observation versus active interference.
Q: Can the city restrict the alderman's use of the radio?
A: Yes, the city could attach conditions to the alderman's use, including restrictions on disclosing what's heard, prohibitions on transmitting on the radio, and protocols for any communications with officers. The city could also revoke the radio if the alderman misused it.
Q: What does the FCC issue look like?
A: Police radio frequencies are licensed by the FCC, typically to a specific public safety entity (the police department). The license terms might restrict who can possess and use the radio. The AG specifically declined to opine on federal regulatory issues, but suggested consulting the FCC.
Q: What happens if the alderman gets involved in operations after monitoring?
A: The alderman might face:
- Removal procedures under municipal charter
- Civil liability for interference with police operations
- Potential criminal charges if interference rises to the level of obstruction
- Political fallout
The AG opinion's caution was a clear warning that crossing the line had consequences.
Background and statutory framework
Mississippi's municipal-government framework places the police chief as the head of police operations, with aldermen as the legislative body setting policy and budget. The structure follows the broader separation-of-powers principle: legislators legislate, executives execute. Mixing the functions creates corruption risks (favoritism in enforcement, retaliation against opponents) and operational dysfunction (officers receiving conflicting commands).
The AG had developed this doctrine through several prior opinions:
- Miller (2005): police chief is executive, alderman is legislative; one person can't be both
- Beshears (2013): boards of aldermen exercise core legislative powers
- O'Reilly (2006): police chief is in the executive branch
- Jackson (2016): mayor and board cannot determine how investigations proceed
- Crawford (2011): board cannot enact policy specifying location/duration of police checkpoints
- Parker (2008): mayor and board cannot become involved in day-to-day police operations
- Barton (2006), Nickles (2002), Phillips (1997): aldermen have observation/policy authority but not law-enforcement-decision authority
The 2021 opinion fits this pattern: passive observation OK, active intervention not OK.
Citations and references
Constitutional provisions:
- Miss. Const. art. 1, §§ 1-2, separation of powers
Statutes:
- Miss. Code Ann. § 7-5-25, AG opinions limited to state law
- Miss. Code Ann. § 21-3-15(2)(a), aldermen prohibited from giving orders to municipal employees other than personal staff
- Miss. Code Ann. § 21-21-1, police chief has control and supervision of all police officers
Prior AG opinions cited:
- MS AG Op., Miller (Jan. 21, 2005), police chief and alderman in different branches
- MS AG Op., Beshears (Jan. 18, 2013), aldermen exercise core legislative powers
- MS AG Op., O'Reilly (May 19, 2006), police chief is executive
- MS AG Op., Jackson (Feb. 19, 2016), mayor/board cannot direct investigations or warrants
- MS AG Op., Crawford (Oct. 28, 2011), checkpoint policy is law-enforcement decision
- MS AG Op., Parker (Feb. 29, 2008), no involvement in day-to-day operations
- MS AG Op., Barton (Mar. 23, 2006), aldermen have policy but not law-enforcement-decision authority
- MS AG Op., Nickles (Mar. 8, 2002), same
- MS AG Op., Phillips (Oct. 17, 1997), same
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/07/D.-Griffith-June-22-2021-Aldermans-U-se-of-P-olice-R-adio-and-S-eparation-of-P-owers-D-octrine.pdf
Original opinion text
June 22, 2021
Daniel J. Griffith, Esq.
Board Attorney, City of Cleveland
Post Office Box 1209
Cleveland, Mississippi 38732
Re: Alderman's Use of Police Radio and Separation of Powers Doctrine
Dear Mr. Griffith:
The Office of the Attorney General has received your request for an official opinion.
Background
In your request, you ask about a member of the board of aldermen using a police radio to monitor police radio traffic, stating specifically:
Prior to modern high band radio frequencies, any citizen could monitor radio traffic via a scanner. The modern communication system in use by the City of Cleveland makes that impossible. The alderman [in possession of the police radio] would not be acting in a supervisory capacity, would not make calls and would not become involved in the day-to-day operations of the Cleveland Police Department. The radio would be owned by the City and subject to its license. Access to radio traffic would be an aid to the alderman fulfilling his policy making role with the City.
Issues Presented
Within the mandate of Mississippi Code Annotated Section 21-3-15(2)(a), may the City of Cleveland allow a member of the Cleveland Board of Aldermen to use a police radio to monitor police radio traffic?
Brief Response
The city may allow an alderman to use a police radio to monitor police radio traffic without it being a per se violation of the separation of powers doctrine. However, the actions an alderman takes in response to what he or she hears on the police radio could easily become a violation if he or she gets involved in the daily operations of the police department.
Applicable Law and Discussion
The separation of powers doctrine prohibits an official exercising core powers within one branch of government from simultaneously exercising core powers in another branch of government. See MISS. CONST. art. 1, §§ 1-2. A board of aldermen exercises core powers within the legislative branch, while a police chief exercises core executive powers. MS AG Op., Miller at 2 (Jan. 21 2005) ("As the office of police chief of a municipality is a position which is in the executive branch of government and the office of alderman is in the legislative branch of government, one individual may not simultaneously serve in both positions."); MS AG Op., Beshears at 1 (Jan. 18, 2013) ("Boards of aldermen exercise core powers of the legislative department of municipal government."); MS AG Op., O'Reilly at *1 (May 19, 2006) ("A municipal police chief is also a position in the executive branch of government.").
Section 21-3-15(2)(a), pertaining to the duties of aldermen, provides: "No member of the board of aldermen shall give orders to any employee or subordinate of a municipality other than the alderman's personal staff." The code section pertaining to the duties of the police chief states that "[t]he marshal or chief of police shall be the chief law enforcement officer of the municipality and shall have control and supervision of all police officers employed by said municipality…." Miss. Code Ann. § 21-21-1.
Previous opinions issued by this office have maintained that the mayor and board of aldermen do not have authority to determine how police investigations should proceed and whether search warrants or arrest warrants will be obtained, because these are part of the daily operations of the police department and are, therefore, under the authority of the police chief. MS AG Op., Jackson at 1 (Feb. 19, 2016). Our office also has opined that a board of aldermen does not have authority to enact a policy specifying the location or duration of police checkpoints because this is a law enforcement decision under the purview of the police chief pursuant to Section 21-21-1. MS AG Op., Crawford at 2 (Oct. 28, 2011). Citing earlier opinions, we stated:
Neither the mayor nor the board of aldermen have the authority to become involved in the day to day operations of the police department. MS AG Op., Parker (February 29, 2008). While aldermen, as the legislative arm of the municipality, have the authority to observe the activities of the police department, create positions, fix salaries and appropriate funds to the police department, they may not make law enforcement decisions, as such functions are executive in nature and are solely within the purview of the police chief. MS AG Op., Barton (March 23, 2006); MS AG Op., Nickles (March 8, 2002); MS AG Op., Phillips (October 17, 1997).
Id. at *1.
This office is of the opinion that mere possession of a police radio by an alderman is not a violation of the separation of powers doctrine; however, the actions an alderman takes in response to what he or she hears on the police radio could easily become a violation if he or she gets involved in the daily operations of the police department. We caution any alderman with a police radio against any actions that could potentially compromise or interfere with law enforcement investigations or release confidential information regarding crime victims. If the alderman involves himself in a specific law enforcement matter as a result of his access to a police radio, such action could constitute involvement in the day-to-day activities of the police department and, in such case, would violate the separation of powers doctrine.
Your request, which references radio frequencies and police radio licenses, may be governed by federal laws and/or regulations, along with the provisions of any applicable licenses. Pursuant to Section 7-5-25, this office may only opine on matters of state law. Thus, we do not opine on federal laws or regulations. We suggest that you review the license to determine whether it restricts access to the subject radios. You may wish to consult with the Federal Communications Commission for any federal regulations that might also apply.
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/ Misty Monroe
Misty Monroe
Special Assistant Attorney General