Do Mississippi corrections officers, parole officers, or health-department compliance inspectors exercise 'core powers' of the executive branch?

Plain-English summary

Mississippi's separation-of-powers doctrine bars a person from holding positions in two different branches of government if both positions exercise "core powers" of their branch. Article 1, Section 2 of the Mississippi Constitution sets the rule. The Mississippi Supreme Court in Dye v. State, 507 So. 2d 332 (Miss. 1987), defined core power as covering "those circumstances 'where the acts are ongoing and are in the upper level of governmental affairs and have a substantial policy-making character.'"

Representative Sanford asked whether three categories of executive-branch employees exercise core powers: (1) MDOC corrections officers classified as non-peace officers without arrest authority, (2) Department of Health compliance inspectors who inspect businesses for regulatory compliance, and (3) MDOC parole officers without arrest authority who supervise parolees.

The AG declined to give a categorical yes or no for any of the three. Whether a specific position exercises core powers turns on the position's duties, level of responsibility, and policy-making character, all of which are factual determinations. The proper decisionmaker for each category is the agency head: the Commissioner of Corrections for MDOC positions, the State Health Officer for Department of Health positions.

The AG did flag that earlier opinions had drawn analogous lines: a corrections officer is "similar to" a police officer (which clearly exercises core powers in a peace-officer role), but whether a non-peace-officer corrections officer falls within that analogy is unclear; a pipeline inspector doing "technical work" in a "non-supervisory position" was opined not to exercise core powers (MS AG Op., Gore, Feb. 1, 2019). The Sanford opinion uses these as guideposts, not as categorical rules.

What this means for you

For state agency heads (MDOC, Department of Health, others)

The AG concluded that whether each of the three positions exercises "core powers" is "ultimately a determination of fact" for the agency head: the Commissioner of Corrections for the MDOC corrections-officer and parole-officer positions, and the State Health Officer for the Department of Health compliance inspector. The framework comes from Dye: "core power" covers acts that are "ongoing and . . . in the upper level of governmental affairs and have a substantial policy-making character."

For state employees considering dual office holding

The opinion's point is that whether your executive-branch job exercises "core powers" (and so cannot be combined with a core position in another branch) depends on the position's specific duties, applying the Dye factors. The AG noted that a corrections officer was previously treated as "similar to" a police officer, while a pipeline inspector doing "technical work" in a "non-supervisory position" was opined not to exercise core powers. The determination for your position rests with your agency head.

For judges deciding dual-office cases

The opinion leaves the factual determinations about these three positions to the Commissioner of Corrections or State Health Officer. It cites In re Anderson, 447 So. 2d 1275 (Miss. 1984), for the holding that a justice court judge could not also serve as a police officer. A prior AG opinion treated a corrections officer supervising inmates as "similar to" a police officer but also noted uncertainty about whether that job exercised executive core powers. This opinion gives no rule about judicial review of agency-head determinations.

For state legislators

The opinion shows that, under current law, the line between core and non-core executive-branch positions is fact-driven, with the relevant agency head (not the AG) as the decisionmaker for each position. The AG declined to give a categorical answer for corrections officers, parole officers, or compliance inspectors, treating each as a factual determination under Miss. Code Ann. § 7-5-25.

Common questions

What is the "core powers" doctrine?

Mississippi's separation-of-powers principles, anchored in Article 1, Section 2 of the Mississippi Constitution, prohibit a person from holding positions in two different branches of government if both positions exercise "core powers" of their respective branch. Dye v. State, 507 So. 2d 332, 343 (Miss. 1987), defined core power as "those circumstances 'where the acts are ongoing and are in the upper level of governmental affairs and have a substantial policy-making character.'" The "So. 2d" reporter is the regional reporter for Mississippi state cases.

Why does it matter for state employees?

If a state employee's job exercises core powers of the executive branch, the employee cannot simultaneously hold a position that exercises core powers of the legislative or judicial branch. So a state employee considering running for the legislature or for a judgeship needs to know whether the day job is "core" before pursuing the second position.

Why doesn't the AG decide whether a corrections officer exercises core powers?

Because the answer is a factual determination for the Commissioner of Corrections. The opinion cites a prior AG opinion that treated a correctional officer supervising inmates at a DOC Community Work Center as similar to a police officer, while also noting uncertainty about whether that position exercised executive core powers. It does not decide whether the non-peace-officer position in this request does. Miss. Code Ann. § 7-5-25 limits AG opinions to questions of state law.

What did the AG say about compliance inspectors?

The AG referenced MS AG Op., Gore (Feb. 1, 2019), which opined that a pipeline inspector doing "technical work" in a "non-supervisory position" would not exercise core powers. If the same determination is made about the Department of Health compliance inspector, that position likewise would not exercise core powers. The State Health Officer must make that determination.

What about MDOC parole officers?

Parole officers without arrest authority who supervise parolees may meet the criteria of ongoing acts in the upper level of governmental affairs with substantial policy-making character, but the AG could not make that determination. The Commissioner of Corrections is the proper decisionmaker.

Is being "ongoing" or "policy-making" enough by itself?

The opinion quotes Dye's description of core power as acts that "are ongoing and are in the upper level of governmental affairs and have a substantial policy-making character." It does not decide the status of any of the three positions in the request from one feature alone.

Background and statutory framework

Article 1, Section 2, Mississippi Constitution. Establishes separation of powers among the three branches of government.

Dye v. State, 507 So. 2d 332, 343 (Miss. 1987). Defines "core power" as ongoing acts in the upper level of governmental affairs with substantial policy-making character.

In re Anderson, 447 So. 2d 1275 (Miss. 1984). Held that a justice court judge cannot dually serve as a police officer because the two positions are in different branches.

MS AG Op., Anderson (Mar. 3, 2000). Treated a corrections officer at a DOC Community Work Center as "similar to" a police officer for separation-of-powers purposes; could not also serve as a justice court judge.

MS AG Op., Gore (Feb. 1, 2019). Pipeline inspector doing technical, non-supervisory work was opined not to exercise core powers.

MS AG Op., Hudson (June 26, 2020). Restates the Dye framework for core-powers analysis.

Miss. Code Ann. § 7-5-25. Limits AG opinions to questions of state law and prevents the AG from making factual determinations.

Citations

• Miss. Const. art. 1, § 2
• Miss. Code Ann. § 7-5-25
• Dye v. State, 507 So. 2d 332 (Miss. 1987)
• In re Anderson, 447 So. 2d 1275 (Miss. 1984)
• MS AG Op., Anderson (Mar. 3, 2000)
• MS AG Op., Gore (Feb. 1, 2019)
• MS AG Op., Hudson (June 26, 2020)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/12/N.-Sanford-November-1-2024-Core-Powers-of-the-Executive-Branch.pdf

Original opinion text

November 1, 2024
The Honorable Noah Sanford
Mississippi House of Representatives
Post Office Box 1018
Jackson, Mississippi 39215-1018
Re:

Core Powers

Dear Representative Sanford:
The Office of the Attorney General has received your request for an official opinion. Questions Presented

1. Does a corrections officer, classified as a non-peace officer without power to make arrests,
   employed by the Mississippi Department of Corrections ("MDOC"), exercise core powers of the executive branch?
2. Does a compliance inspector employed by the Mississippi Department of Health and tasked
   with inspecting businesses for compliance with rules and regulations exercise core powers of the executive branch?
3. Does a parole officer employed by MDOC, tasked with supervising parolees and without
   the authority to make arrests, exercise core powers of the executive branch? Brief Response
4. Whether a corrections officer, classified as a non-peace officer without power to make
   arrests, employed by MDOC, is a position exercising "core powers" is ultimately a determination of fact to be made by the Commissioner of Corrections.

5. Whether a compliance inspector employed by the Mississippi Department of Health, tasked
   with inspecting businesses, is a position exercising "core powers" is ultimately a determination of fact to be made by the State Health Officer.

6. Whether a parole officer employed by MDOC, tasked with supervising parolees and
   without the authority to make arrests, is a position exercising "core powers" is ultimately a determination of fact to be made by the Commissioner of Corrections. Applicable Law and Discussion 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)). As noted in your request, each position that you ask about is in the executive branch. You first ask if a MDOC corrections officer, classified as a non-peace officer without the power to make arrests, exercises core powers of the executive branch. In MS AG Op., Anderson at 1 (Mar. 3, 2000), this office opined that a correctional officer supervising inmates at a DOC Community Work Center could not also serve as a justice court judge. We reasoned that "the job of a correctional officer . . . is similar to that of a police officer," and cited In re Anderson, 447 So. 2d 1275, 1276 (Miss. 1984), which held that a justice court judge could not dually serve as a police officer because the two positions are in different branches of government. MS AG Op., Anderson at 1. However, prior to reaching this conclusion in Anderson, we noted that "[i]t is not clear that such a job as correctional officer would be one where the individual is exercising a function at the core of the power of the executive branch, or whether his duties as such would be 'ongoing and in the upper level of governmental affairs', having 'a substantial policy-making character.'" Id. (citing Dye, 507 So. 2d at 343). Ultimately, whether a MDOC corrections officer, classified as a non-peace officer without the power to make arrests, exercises core powers of the executive branch is a factual determination to be made by the Commissioner of Corrections. See Miss. Code Ann. § 7-5-25 (providing the Office of the Attorney General may only opine upon questions of state law). You next ask if a compliance officer employed by the Department of Health and tasked with inspecting businesses for compliance with rules and regulations exercises core powers of the executive branch. Our office has opined that a pipeline inspector job requiring "technical work" in a "non-supervisory position" would not exercise core powers of the executive branch. See MS AG Op., Gore at 2 (Feb. 1, 2019). If the same determination is made in regard to a Department of Health compliance officer tasked with inspecting businesses, such officer would likewise not be exercising core powers of the executive branch. However, such determination should be made by the State Health Officer. Finally, you ask if a MDOC parole officer, tasked with supervising parolees and without the authority to make arrests, exercises core powers of the executive branch. Please see responses to questions one and two. While the position of a MDOC parole officer, tasked with supervising parolees, 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 to be made by the Commissioner of Corrections. MS AG Op., Hudson at 1.

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