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 school board and airport board members

Under the opinion, a McComb School Board member may also sit on the McComb/Pike County Airport Board. The AG concluded that "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." The reasoning rests on the rule, drawn from Article I, Section 2, that the constitution does not bar holding more than one position within the same branch (citing the 1996 Junkin opinion).

For anyone weighing this combination

The opinion's holding is limited to the separation-of-powers question for these two boards. The AG expressly did not address conflicts of interest: "We refer you to the Ethics Commission regarding any potential conflicts of interest or other ethical implications arising out of service on these boards." Anyone with a conflicts question is directed to the Ethics Commission, not answered here.

Common questions

Q: Can a person on a Mississippi school board also serve on a joint airport board?
A: Yes. The opinion holds that both bodies fall within the executive branch, so simultaneous service "would not violate the separation of powers doctrine."

Q: Why doesn't the separation of powers bar serving on both?
A: Article I, Section 2 stops a person from holding offices in two different branches, but the opinion notes those provisions "do not prohibit an individual from holding more than one position within the same branch of government." Both a school board and a joint airport board are in the executive branch.

Q: Why is an airport board considered "executive"?
A: The opinion applies Alexander v. Allain, which defines executive power as "the power to administer and enforce the laws as enacted by the legislature." It concludes that a joint airport board's powers under the Municipal Airport Law, including adopting ordinances and rules under Section 61-5-13, are administrative and do not "strip a joint airport board of its executive nature," just as a school board's rule-making does not change its executive classification (Bounds, 2006).

Q: Did the AG decide whether serving on both boards creates a conflict of interest?
A: No. The opinion's scope is "limited to whether simultaneous service on the aforementioned boards violates the separation of powers doctrine," and it refers any conflict-of-interest or ethical questions to the Mississippi Ethics Commission.

Background and statutory framework

The opinion rests on Article I, Sections 1 and 2 of the Mississippi Constitution of 1890. Section 1 divides state government into legislative, judicial, and executive departments. Section 2 provides that no person belonging to one department "shall exercise any power properly belonging to either of the others," and that accepting an office in one department "shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments."

The opinion quotes the Liner opinion (Jan. 31, 2020) for the formulation that "a person who exercises 'core powers' in one branch of government cannot simultaneously hold a position in another branch," and the Junkin opinion (Mar. 8, 1996) for the point that those provisions do not prohibit holding more than one position within the same branch.

To classify the two boards, the opinion uses the executive-power definition from Alexander v. Allain, 441 So. 2d 1329, 1338 (Miss. 1983): "the power to administer and enforce the laws as enacted by the legislature and interpreted by the courts." It relies on the Bounds opinion (July 27, 2006), quoting Crook (Sept. 12, 2002), which had already placed school boards in the executive branch and rejected the argument that their rule-making makes them legislative. Applying the same reasoning to the airport board under the Municipal Airport Law (Sections 61-5-1 through 61-5-49, with joint boards formed under Section 61-5-37 and powers in Sections 61-5-5, 61-5-9 et seq., and 61-5-13), the opinion concludes the airport board is also executive, so simultaneous service is permitted.

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