Can a Mississippi county supervisor also serve as executive director of the Pat Harrison Waterway District?

Plain-English summary

Mississippi separates governmental power into three branches: legislative, judicial, and executive (Miss. Const. art. I, § 1). The "separation of powers" doctrine in art. I, § 2 prohibits one person from holding positions in two different branches of government if both positions exercise "core powers" within their respective branches.

The PHWD president asked: can a county supervisor also serve as the District's executive director? The AG walked through the analysis:

• A county supervisor exercises core powers within the judicial branch. Mississippi has long classified boards of supervisors as part of the judicial branch (an unusual arrangement compared to other states), per Carl Ronnie Daricek Living Tr. v. Hancock County and a long line of AG opinions.
• The Pat Harrison Waterway District is a state agency under Miss. Code Ann. § 51-15-103, which puts it in the executive branch.

That sets up the conflict on paper. But the AG stopped short of giving a yes-or-no answer because of a factual gap: under § 51-15-119(1)(l), the only statutory power given to the PHWD executive director is the discretionary authority to hire and discharge employees, and only at the pleasure of the board. Whether that role, as actually carried out, rises to "core powers" (defined in Dye v. State as ongoing acts at the upper level of governmental affairs with substantial policy-making character) is a factual judgment the AG cannot make. The PHWD board has to make that determination.

So the bottom line: if the board concludes the director position does exercise core powers, dual service is unconstitutional. If the board concludes the role is mainly administrative and lacks substantial policy-making character, dual service is allowed.

What this means for you

If you are a county supervisor considering taking another public position

You are constitutionally constrained. Mississippi treats supervisors as judicial-branch officers exercising core powers. You cannot simultaneously hold a position in the legislative or executive branch that also exercises core powers. Get a clear analysis of the second position's role before accepting it, and consider asking the AG or an outside attorney for an opinion specific to that role.

If you are on the board of a state agency, district, or commission

You may need to make the "core powers" determination yourself. The AG can't make factual calls about whether a position exercises core powers. If you are evaluating a candidate who already holds another public office, the board should document its analysis of the candidate's prospective duties: are they ongoing, at the upper level of governmental affairs, with substantial policy-making character? If yes, that's core powers, and dual service may be barred.

If you are a Mississippi attorney advising on dual-office issues

Don't treat this as a settled yes/no question. Each role has to be analyzed for core powers. The categorical rules: supervisors = judicial branch core powers (settled); sheriffs = executive branch core powers (settled); community college trustees = executive branch core powers (settled, see the companion Davis opinion from the same day). Lesser-known positions (district directors, agency officers) require facts about their actual responsibilities.

If you are a citizen wondering whether your local supervisor's other job is legal

Look at what the second job actually involves. If it is administrative and the person reports to and serves at the pleasure of a board, it may not be core powers. If the person sets policy, makes major budgeting calls, or independently directs governmental affairs, that's much more likely to be core powers. The Mississippi Ethics Commission can also weigh in on conflict-of-interest concerns separate from the constitutional analysis.

If you serve on the PHWD board specifically

You have to decide. The AG put the ball in your court: examine the executive director's actual responsibilities and decide whether they constitute core powers. Document the analysis. If you conclude they do, then a sitting county supervisor cannot hold the position. If you conclude they don't, dual service is constitutionally permissible (though ethics rules still apply separately).

Common questions

Q: What is the "core powers" doctrine?
A: It's a Mississippi constitutional rule that bars one person from holding positions in two different branches of government if both positions exercise "core powers." The Mississippi Supreme Court in Dye v. State defined core powers as ongoing acts at the upper level of governmental affairs with substantial policy-making character.

Q: Why are county supervisors in the judicial branch?
A: Mississippi's constitutional structure historically classifies boards of supervisors as judicial. They handle quasi-judicial functions like ad valorem tax assessments, road controversies, and county property matters. The Mississippi Supreme Court confirmed this in Carl Ronnie Daricek Living Tr. v. Hancock County. It is a Mississippi-specific quirk; in most states, county boards are executive.

Q: What does the PHWD do?
A: The Pat Harrison Waterway District manages the rivers and tributaries along the Pascagoula River Basin and operates camping, cabins, and recreational facilities. It is a state agency under Miss. Code Ann. § 51-15-103, placing it in the executive branch.

Q: What is the executive director's actual statutory power?
A: Section 51-15-119(1)(l) gives the PHWD board the right to employ a general manager or executive director. The director's only enumerated power is to hire and discharge employees, and only at the discretion of the board. That's a thin statutory toolkit, which is why the AG declined to call it "core powers" without a factual record.

Q: Can the AG make the final call?
A: No. § 7-5-25 limits AG opinions to prospective questions of state law. Whether a particular position exercises core powers is a factual determination, which the AG cannot decide.

Q: What if the board decides the role is core powers and the person is already serving?
A: The AG noted it cannot validate or invalidate past actions. Going forward, the constitutional bar would mean the person cannot continue in both roles. The Mississippi Ethics Commission and the State Auditor are appropriate next stops for any retroactive concerns.

Q: Does this also apply to advisory positions?
A: Generally not. Core powers requires "ongoing acts in the upper level of governmental affairs with substantial policy-making character." An advisory or part-time consultative role typically wouldn't meet that bar, but it depends on the facts.

Background and statutory framework

Mississippi's separation of powers is more strictly enforced than the federal version. Article I, § 2 of the state constitution provides: "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 Mississippi Supreme Court read this with teeth in Dye v. State, 507 So. 2d 332 (Miss. 1987), establishing the "core powers" framework. A person can hold positions in two branches only if at least one of those positions does not exercise core powers.

Three categorical rules have built up around the doctrine:

• Boards of supervisors: judicial branch, core powers. (Numerous AG opinions; Daricek.)
• Sheriffs: executive branch, core powers. (Lewis v. Hinds Cnty. Cir. Court, 158 So. 3d 1117 (Miss. 2015); see the companion Davis opinion, also dated December 21, 2023.)
• Community college trustees: executive branch, core powers.

When both positions are categorically core powers and in different branches, dual service is unconstitutional. When the second position is in the same branch as the first, dual service is permitted (the doctrine is about cross-branch service, not within-branch). When the second position's status is unclear, the AG punts the factual call to the relevant board.

The PHWD opinion is in the third category. The AG provided the legal framework but left the factual call to the PHWD board. That's a recurring move in MS AG opinions: the legal rule is articulated, but factual gaps must be filled by the agency or board with on-the-ground knowledge of how a position actually operates.

Citations and references

Mississippi Constitution:
- Miss. Const. art. I, § 1 (separation into three branches)
- Miss. Const. art. I, § 2 (no person in one branch shall exercise powers belonging to another)

Statutes:
- Miss. Code Ann. § 7-5-25 (AG opinions limited to prospective state-law questions)
- Miss. Code Ann. § 51-15-103 (Pat Harrison Waterway District is a state agency)
- Miss. Code Ann. § 51-15-119(1)(l) (PHWD board may employ general manager or executive director)

Cases:
- Dye v. State, 507 So. 2d 332 (Miss. 1987) (defining "core powers")
- Carl Ronnie Daricek Living Tr. v. Hancock Cnty. ex rel. Bd. of Sup'rs, 34 So. 3d 587 (Miss. 2010) (boards of supervisors are part of the judicial branch)
- Alexander v. State by and through Allain, 441 So. 2d 1329 (Miss. 1983) (defining executive power)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/12/D.Pittman-December-21-2023-Executive-Director-of-PHWD-and-Separation-of-Powers.pdf

Original opinion text

December 21, 2023

Mr. Don Pittman
President, Pat Harrison Waterway District
9283 Pine Springs Road
Meridian, Mississippi 39305

Re: Executive Director of PHWD and Separation of Powers

Dear Mr. Pittman:

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

Question Presented

May an elected member of a county board of supervisors also be the executive director of the Pat Harrison Waterway District?

Brief Response

The separation of powers doctrine prohibits a person from holding positions in two different branches of government if both positions exercise "core powers" within their respective branch. A member of the county board of supervisors exercises core powers within the judicial branch of government. The Pat Harrison Waterway District is a state agency, which falls within the executive branch of government. Whether the position of executive director of the Pat Harrison Waterway District, as you describe it, is a position exercising "core powers" is ultimately a determination of fact upon which this office may not opine.

Applicable Law and Discussion

The scope of this opinion is limited to whether simultaneous service in two public positions violates the separation of powers doctrine. We refer you to the Mississippi Ethics Commission regarding potential conflicts of interest or other ethical implications arising out of simultaneous service. Also, this office can neither validate nor invalidate past action. Section 7-5-25 of the Mississippi Code limits opinions of this office to prospective questions of state law.

The powers of the government of the State of Mississippi are divided into three distinct departments: the legislative branch, the judicial branch, and the executive branch. MISS. CONST. art. I, § 1. The separation of powers doctrine prohibits a person from holding positions in two different branches of government if both positions exercise "core powers" within their respective branch. See MISS. CONST. art. I, § 2; MS AG Op., Hudson at 1 (June 26, 2020). "'Core power' has been defined by the Court to include those circumstances 'where the acts are ongoing and are in the upper level of governmental affairs and have a substantial policy-making character.'" MS AG Op., Hudson at 1 (quoting Dye v. State, 507 So. 2d 332, 343 (Miss. 1987)).

Turning to the specific question at hand, "[t]his office has consistently opined that a member of a board of supervisors exercises 'powers at the core' of the judicial branch of government." MS AG Op., Gore at 1 (Feb. 1, 2019). See also Carl Ronnie Daricek Living Tr. v. Hancock Cnty. ex rel. Bd. of Sup'rs, 34 So. 3d 587, 597 (Miss. 2010) (noting that boards of supervisors "are part of the judicial branch of state government"). The Pat Harrison Waterway District ("PHWD"), however, is a state agency and is part of the executive branch of government. Miss. Code Ann. § 51-15-103; see MS AG Op., Hendrix at 1 (June 15, 2001); Alexander v. State by and through Allain, 441 So. 2d 1329, 1338 (Miss. 1983) ("[E]xecutive power [i]s the power to administer and enforce the laws as enacted by the legislature and as interpreted by the courts."). Accordingly, a member of the board of supervisors may not simultaneously serve as the executive director of the PHWD if such position exercises core powers within the executive branch of government.

The PHWD provides camping, cabins, and recreational facilities in Mississippi and is responsible for managing the rivers and their tributaries along the Pascagoula River Basin. PAT HARRISON WATERWAY DISTRICT, https://www.phwd.net (last visited December 13, 2023). Pursuant to Section 51-15-119(1)(l), the PHWD board of directors "shall have the right to employ a general manager or executive director, who shall, at the discretion of the board, have the power to employ and discharge employees." This authority to hire and discharge employees is the only power granted by statute to the executive director, and that authority is only at the discretion of the board. Id. While the position of executive director of the PHWD may meet the criteria of a position exercising "core powers," i.e., ongoing acts in the upper level of governmental affairs with substantial policy-making character, it is ultimately a determination of fact to be made by the PHWD board of directors. MS AG Op., Hudson at *1.

If it is determined that the executive director of the PHWD exercises "core powers" within the executive branch, an individual may not simultaneously serve as the executive director of the PHWD and a member of a county board of supervisors. Such simultaneous service would constitute a violation of the separation of powers doctrine. However, if it is determined that the executive director of the PHWD does not exercise "core powers," such simultaneous service will 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/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General