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. The opinion notes the office "has consistently opined that a member of a board of supervisors exercises 'powers at the core' of the judicial branch," citing Carl Ronnie Daricek Living Tr. v. Hancock Cnty., which noted boards of supervisors "are part of the judicial branch of state government."
• 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

County supervisors

The opinion holds that "a member of the county board of supervisors exercises core powers within the judicial branch of government," citing prior opinions and Daricek. Under the separation of powers doctrine, such a supervisor "may not simultaneously serve as the executive director of the PHWD if such position exercises core powers within the executive branch."

The PHWD board of directors

The opinion leaves the key call to the board: "[w]hether 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." It notes that the only statutory power the director has under § 51-15-119(1)(l) is to employ and discharge employees "at the discretion of the board," and that whether the role rises to core powers (ongoing acts in the upper level of governmental affairs with substantial policy-making character) is for the board to decide.

Anyone weighing the constitutional question

The opinion is explicit about its limits: it addresses only "whether simultaneous service in two public positions violates the separation of powers doctrine," refers questions of conflict of interest or other ethical implications to the Mississippi Ethics Commission, and notes it "can neither validate nor invalidate past action" under § 7-5-25.

Common questions

Q: What is the "core powers" doctrine?
A: The opinion describes it as barring a person "from holding positions in two different branches of government if both positions exercise 'core powers' within their respective branch," and quotes Dye v. State (via its Hudson opinion) defining core power as where "the acts are ongoing and are in the upper level of governmental affairs and have a substantial policy-making character."

Q: Which branch is a county supervisor in?
A: The opinion states a member of a board of supervisors "exercises 'powers at the core' of the judicial branch of government," citing Carl Ronnie Daricek Living Tr. v. Hancock Cnty., which noted boards of supervisors "are part of the judicial branch of state government."

Q: Which branch is the PHWD in?
A: The opinion states the PHWD "is a state agency and is part of the executive branch of government," citing § 51-15-103.

Q: What statutory power does the executive director have?
A: The opinion quotes § 51-15-119(1)(l): the board "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," and notes "[t]his authority to hire and discharge employees is the only power granted by statute to the executive director."

Q: Why didn't the AG just answer yes or no?
A: The opinion explains that whether the executive director exercises core powers "is ultimately a determination of fact to be made by the PHWD board of directors," and that § 7-5-25 limits the office to prospective questions of state law.

Background and statutory framework

The opinion sets out Mississippi's separation of powers. Article I, § 1 divides the government into "the legislative branch, the judicial branch, and the executive branch," and the opinion reads the doctrine (art. I, § 2) to prohibit "a person from holding positions in two different branches of government if both positions exercise 'core powers' within their respective branch." It quotes Dye v. State, 507 So. 2d 332, 343 (Miss. 1987), for the definition of core power as acts that "are ongoing and are in the upper level of governmental affairs and have a substantial policy-making character."

Applying that framework, the opinion places a board of supervisors in the judicial branch exercising core powers (citing Gore and Daricek), and the PHWD in the executive branch as a state agency (citing § 51-15-103 and Alexander v. State by and through Allain, 441 So. 2d 1329, 1338 (Miss. 1983), for the definition of executive power). The conflict therefore turns on whether the executive director position itself exercises core powers, which the opinion describes as the PHWD board's factual determination. If it does, "an individual may not simultaneously serve as the executive director of the PHWD and a member of a county board of supervisors"; if it does not, "such simultaneous service will not violate the separation of powers doctrine."

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