Can a Mississippi school board member also serve on a joint airport board, or does the separation of powers prohibit it?
Plain-English summary
The McComb/Pike County Airport Board's president asked whether a person currently serving on the McComb School Board could also serve on the airport board.
The AG said yes. Both boards exercise executive-branch powers, so simultaneous service does not violate Mississippi's constitutional separation of powers.
The framework: Article I, Section 1 of the Mississippi Constitution divides government into three branches (legislative, judicial, executive). Article I, Section 2 prohibits a person in one branch from exercising powers of another, and provides that accepting an office in one branch automatically vacates any office held in another branch.
The same-branch test: A person can hold multiple positions within the same branch without violating the separation. The Junkin (1996) opinion confirmed this.
Are public school boards executive? Yes. The 2006 Bounds opinion held that school boards exercise executive functions: administering and enforcing laws enacted by the legislature. The Mississippi Supreme Court in Alexander v. Allain, 441 So. 2d 1329 (Miss. 1983), defined executive power as "the power to administer and enforce the laws as enacted by the legislature and interpreted by the courts." The Bounds opinion rejected the argument that the school board's rule-making authority makes it legislative; rule-making in service of executing the laws remains executive.
Are joint airport boards executive? Yes, by the same analysis. The Municipal Airport Law (Sections 61-5-1 et seq.) authorizes joint airport boards to plan, develop, construct, operate, maintain, and police airports; adopt rules and regulations; appoint guards; receive and expend public money; etc. These are administrative and enforcement functions: executive in nature.
Both being executive, simultaneous service does not violate separation of powers.
The AG explicitly limited the opinion to the separation-of-powers question and referred any conflict-of-interest concerns to the Mississippi Ethics Commission.
What this means for you
For Mississippi school board members
Holding additional executive-branch positions is not a separation-of-powers problem. School board service is compatible with:
- Joint airport board service (this opinion)
- Other county or municipal boards in the executive branch
- Most administrative agency board memberships
It is not compatible with:
- Service in the Mississippi Legislature (legislative branch)
- Service as a judge (judicial branch)
- Service in the executive branch of state government if the role conflicts with school board duties (consult specifics)
For each potential dual-office situation, look at the second office's branch classification first. If both are executive, separation of powers is not the issue.
For airport board members
Same analysis. Joint airport boards are clearly executive. Members can serve on:
- School boards (this opinion)
- Other county/municipal boards
- Most other executive bodies
For potential dual-office holders generally
The classification framework:
- Executive: most local boards (school, airport, hospital, library, planning), most administrative agencies, most regulatory bodies
- Legislative: the Mississippi Legislature, sometimes parts of municipal governance (the legislative function of city councils)
- Judicial: courts, judges, magistrates
Most local boards are executive. Most simultaneous-service questions in local government are about same-branch service and do not raise separation-of-powers concerns.
The AG's office can address branch-classification questions. The Ethics Commission addresses conflict-of-interest issues, which can arise even when separation of powers is not violated.
For government attorneys advising on dual-office issues
Two-step analysis:
- Branch classification: Are both offices in the same branch? If yes, separation of powers is not the issue.
- Conflict of interest: Even if the same branch, are there specific conflicts (a school board member voting on an airport-related matter that affects the school district financially)? Refer to the Ethics Commission and Section 25-4 (Ethics in Government Act).
A separation-of-powers analysis does not exhaust the dual-office issue. Specific statutes may also bar particular combinations (e.g., specific prohibitions in the school-board chapter or other governance provisions).
For candidates seeking multiple offices
Before running for or accepting a second position, check:
- Branch classification of both offices
- Specific statutory prohibitions on dual service
- Ethics Commission rules on conflicts
- Practical conflicts (will you have time to serve both roles effectively?)
A clean separation-of-powers analysis is one piece. The full picture requires the other checks too.
Common questions
Q: What is "core power"?
A: The Liner (2020) opinion (cited by the AG) referenced "core powers" in one branch versus another. A person exercising core powers in one branch cannot simultaneously hold a position with core powers in another branch. The phrase is shorthand for the constitutional separation principle.
Q: Are city council members legislative or executive?
A: City councils are sometimes characterized as having mixed legislative and executive functions. The dominant view treats them as legislative for separation-of-powers purposes. School board members, by contrast, are clearly executive (administering school laws), even though both bodies adopt rules.
Q: What about the mayor?
A: Mayors are executive. School board service plus mayoral service is generally compatible from a separation-of-powers standpoint, subject to other considerations.
Q: Can a school board member also serve in the state legislature?
A: No. Service in the state legislature is legislative branch; school board is executive branch. Section 2's automatic vacation rule applies.
Q: Can a school board member be a judge?
A: No. Judges exercise judicial-branch powers; school board is executive. The two are incompatible.
Q: What if the school board member holds an unpaid advisory position elsewhere?
A: Advisory positions that do not exercise governmental power are typically not "offices" for separation-of-powers analysis. Voluntary, advisory committee membership does not trigger the rule.
Q: What is the difference between separation of powers and conflict of interest?
A: Separation of powers is structural: the constitution prohibits one person from holding offices in different branches simultaneously. Conflict of interest is fact-specific: a person may not act in one role on a matter where they have a personal or other-role interest. Separation is about structure; conflict is about specific decisions.
Q: How does the Ethics Commission analyze conflicts?
A: The Ethics Commission applies the Ethics in Government Act (Section 25-4) and related rules. They evaluate whether specific decisions create conflicts requiring recusal or other measures. They do not opine on separation of powers.
Q: Does the rule extend to dual federal-state office?
A: The Mississippi Constitution applies to Mississippi offices. Federal offices are governed by federal law. Some specific federal-state combinations have constitutional or statutory issues that need separate analysis.
Q: What if a person is automatically deemed to have vacated a school board seat by accepting a second incompatible office?
A: Article I, Section 2 says acceptance "shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments." If the second office is in a different branch, the first office is automatically vacated. The first board's seat would then need to be filled by the appropriate process.
Background and statutory framework
Mississippi's separation-of-powers doctrine traces to Article I, Sections 1 and 2 of the 1890 Constitution. The framers drew a strong line between branches and made dual-branch service automatically vacating.
Mississippi courts have applied the doctrine consistently. Alexander v. Allain (1983) is the key case for distinguishing executive and legislative powers. The court defined executive power as "the power to administer and enforce the laws as enacted by the legislature and interpreted by the courts." Legislative power is the authority to make laws.
Local boards in Mississippi are mostly executive. They administer state laws and adopt rules under delegated authority. The 2006 Bounds opinion is the foundational AG opinion classifying school boards as executive. The 2021 Hensarling opinion adds joint airport boards to the executive category.
The reasoning is consistent: if a board's primary function is to administer and enforce existing laws (rather than to make laws), it is executive. Rule-making and regulation-making in service of administration are still executive functions, not legislative.
The 2020 Liner opinion (cited by the AG) reframed the test in terms of "core powers." A person exercising core executive powers in one body cannot exercise core legislative powers in another. The test is not perfectly precise (how do you define "core"?), but it captures the constitutional principle.
The AG's referral to the Ethics Commission for conflict-of-interest issues is standard. The Ethics Commission has specific rule-making authority and an established process for analyzing conflicts. AG opinions on conflicts are rarer because Ethics Commission analysis is the standard route.
The 2021 opinion specifically addresses the McComb School Board (administering schools in McComb) and the McComb/Pike County Airport Board (administering the airport). Even though the airport is in Magnolia, the McComb School Board is entirely separate from the airport in terms of decisions made. There is no obvious conflict-of-interest concern, but specific factual questions can be addressed by the Ethics Commission if they arise.
Citations and references
Statutes:
- Miss. Code Ann. § 61-5-1 et seq., Municipal Airport Law
- Miss. Code Ann. § 61-5-5, joint board authority to plan, develop, operate, regulate airports
- Miss. Code Ann. § 61-5-9 et seq., joint board powers
- Miss. Code Ann. § 61-5-13, joint board ordinance, rule, and guard authority
- Miss. Code Ann. § 61-5-37, formation of joint airport board
- Miss. Code Ann. § 61-5-39, joint board powers subject to constituent-government approval
Mississippi Constitution:
- Miss. Const. art. I, § 1 (separation of powers)
- Miss. Const. art. I, § 2 (no dual-branch service; acceptance of second-branch office automatically vacates first)
Case:
- Alexander v. Allain, 441 So. 2d 1329 (Miss. 1983), distinguishing executive and legislative powers
Prior AG opinions cited:
- MS AG Op., Bounds (July 27, 2006), school boards exercise executive functions; rule-making does not change the classification
- MS AG Op., Crook (Sept. 12, 2002), legislative versus executive powers
- MS AG Op., Junkin (Mar. 8, 1996), Article I, Sections 1 and 2 do not prohibit holding multiple positions within the same branch
- MS AG Op., Liner (Jan. 31, 2020), "core powers" test for separation of powers
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/12/R.Hensarling-October-7-2021-Simultaneous-Service-on-a-School-Board-and-Airport-Board.pdf
Original opinion text
October 7, 2021
Mr. Robert Hensarling
President, McComb/Pike County Airport Board
1018 Pinehurst West
McComb, Mississippi 39648
Re: Simultaneous Service on a School Board and Airport Board
Dear Mr. Hensarling:
The Office of the Attorney General has received your request for an official opinion.
Background Facts
The McComb/Pike County Airport Board is a joint airport board formed pursuant to Title 61, Chapter 5 of the Mississippi Code and jointly owned by the City of McComb and Pike County.
Question Presented
May a person currently serving on the McComb School Board serve on the McComb–Pike County Airport Board simultaneously?
Brief Response
Because both a school board and an airport board fall within the executive branch of government, serving simultaneously on both boards would not violate the separation of powers doctrine.
Applicable Law and Discussion
The scope of this opinion is limited to whether simultaneous service on the aforementioned boards violates the separation of powers doctrine. We refer you to the Ethics Commission regarding any potential conflicts of interest or other ethical implications arising out of service on these boards.
Article I, Section 1 of the Mississippi Constitution of 1890 sets forth the three branches of government:
The powers of the government of the State of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.
MISS. CONST. art. I, § 1. Article I, Section 2 prohibits an individual from simultaneously holding a position in two branches of government:
No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.
MISS. CONST. art. I, § 2; see also MS AG Op., Liner at 1 (Jan. 31, 2020) ("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'."). Those provisions, however, do not prohibit an individual from holding more than one position within the same branch of government. MS AG Op., Junkin at 1 (Mar. 8, 1996).
This office has previously opined that members of a public school board serve within the executive branch of government. MS AG Op., Bounds at *3 (July 27, 2006). Moreover, the Mississippi Supreme Court has provided guidelines for determining within which branch of government a particular office or duty falls. Citing the Mississippi Supreme Court, we have stated:
The Mississippi Supreme Court articulated the differences between the duties of the executive and legislative branches of government in Alexander v. Allain, 441 So. 2d 1329, 1338 (Miss. 1983) and defined "executive power" as: …the power to administer and enforce the laws as enacted by the legislature and interpreted by the courts…Execution is at the core of executive power. We also find pertinent the following distinction: "Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions."
MS AG Op., Bounds at 2 (July 27, 2006) (quoting MS AG Op., Crook at 1 (Sept. 12, 2002) (internal citations omitted)). Therefore, the legislative power includes authority to enact laws, and the executive power includes authority to administer and enforce laws enacted by the legislative branch, while the judicial branch interprets the same. Id.
With respect to airport boards, Mississippi's "Municipal Airport Law" is codified in Sections 61-5-1 through 61-5-49, and joint airport boards, such as the McComb-Pike County Airport Board, are established pursuant to Section 61-5-37. That joint board enjoys authority to exercise, on behalf of its constituent public agencies, the City of McComb and Pike County, all the powers of each public agency, with respect to the airport. Miss. Code Ann. § 61-5-37.
Among those powers enjoyed by joint boards include authority to plan, establish, develop, construct, enlarge, improve, maintain, equip, operate, regulate, protect and police airports and air navigation facilities. Miss. Code Ann. § 61-5-5. Joint boards also enjoy authority to enter into contracts, leases, and other arrangements; adopt, amend, and repeal reasonable ordinances, resolutions, rules, regulations, and orders necessary for the management, government and use of airport or air navigation facilities; appoint airport guards and police; receive and expend state and federal monies for various purposes; dispose of property; and other powers, subject to certain limitations set forth in Section 61-5-39. Miss. Code Ann. § 61-5-9 et seq.
After careful consideration of such authority, this office is of the opinion that a joint airport board, created pursuant to Section 61-5-37, exercises powers within the executive branch of government. Even an airport board's authority to establish and enact ordinances, rules, regulations, and standards for the management, government, and use of the airport or air navigation facility under Section 61-5-13 does not strip a joint airport board of its executive nature. When revisiting the question as to within which branch of government a school board member executes his or her powers, this office rejected the assertion that the board's power to "prescribe and enforce rules and regulations not inconsistent with the law or with the regulations of the State Board of Education for their own government and the government of schools" strips the board of its executive nature. MS AG Op., Bounds at *3 (July 27, 2006). Instead, we opined that by executing such and all other powers granted to the school board by the Legislature, pursuant to Alexander v. Allain, 441 So. 2d 1329 (Miss. 1983), a school board exercises executive power. Id.
Because both a public school board and a joint airport board fall within the executive branch of government, simultaneous service on both boards does not violate the separation of powers doctrine.
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/ Abby Cummings
Abby Cummings
Special Assistant Attorney General