When the Mississippi Department of Education has both a State Superintendent and a State Board of Education, which one is the 'agency head' for purposes of the Internal Audit Act?

Plain-English summary

The Mississippi Internal Audit Act, codified at Miss. Code Ann. §§ 25-65-1 et seq., assigns various duties to the "agency head" of each state agency. The Vice Chair of the State Board of Education asked the AG who fills that role for the Mississippi Department of Education, since MDE has both a State Superintendent of Education and a State Board of Education.

The AG's answer is the Board, not the Superintendent. The reasoning is straightforward. Section 25-65-5(d) defines "agency head" as "an elected official who heads an agency, an executive director or a governing board or commission responsible for heading an agency." MDE has no elected head, so the choice is between the Superintendent (an executive director) and the Board (a governing body).

The tiebreaker comes from Section 37-3-9(1). That statute makes the State Superintendent the "Chief Administrative Officer of the State Board of Education," appointed by the SBE with Senate confirmation, serving "at the board's will and pleasure," and required to administer MDE "in accordance with the policies established by" the SBE. Section 37-3-11 adds that the Superintendent performs duties assigned by the Board. In short, the Board sits above the Superintendent. So the Board, as a governing body responsible for heading an agency, is the agency head for Internal Audit Act purposes; the Superintendent is not.

This matters because the Internal Audit Act assigns specific responsibilities to the agency head: receiving audit reports, approving the internal-audit charter, ensuring corrective action, and so on. With this opinion, those responsibilities sit with the SBE collectively rather than with the Superintendent personally.

What this means for you

If you are an SBE board member

The opinion holds that the State Board of Education is the "agency head" of MDE under Section 25-65-5(d), because the Board appoints the Superintendent, who serves at its will and pleasure and administers MDE in accordance with the Board's policies. On that reading, the Internal Audit Act's agency-head duties rest with the Board rather than the Superintendent.

If you are an MDE internal auditor

The opinion holds that the SBE, not the State Superintendent, is the agency head under the Internal Audit Act. The Superintendent remains MDE's chief administrative officer under Section 37-3-9, but the "agency head" role under Section 25-65-5(d) belongs to the Board.

If you are the State Superintendent

The opinion holds that the Superintendent is MDE's chief administrative officer under Section 37-3-9 but is not the "agency head" under the Internal Audit Act. That designation belongs to the SBE because, in the AG's reading, the Board sits above the Superintendent in appointment and direction authority.

If you advise other Mississippi state agencies

The opinion's reasoning rests on the "governing board or commission responsible for heading an agency" language in Section 25-65-5(d): the AG reads it to point to the body that appoints and directs the executive. For MDE, that body is the SBE. The opinion does not address how the definition applies to agencies with a different governance structure.

Common questions

Q: Does this change who runs MDE day-to-day?
A: No. The State Superintendent remains the chief administrative officer of the State Board of Education and runs MDE on a daily basis. This opinion is specifically about the Internal Audit Act's "agency head" definition.

Q: Why does the Internal Audit Act care who the agency head is?
A: The Internal Audit Act assigns several functions to the agency head, including receiving audit reports, approving the internal-audit charter, and overseeing corrective action. Putting those duties in the right place matters for auditor independence and for accountability.

Q: What's the textual hook for the AG's conclusion?
A: Section 25-65-5(d) lists three categories of agency head: elected official, executive director, or "a governing board or commission responsible for heading an agency." The AG reads "responsible for heading" as meaning the body that sits above the executive in the hierarchy. Because the SBE appoints the Superintendent and sets the policies the Superintendent administers, the SBE fits that description and the Superintendent does not.

Q: Is this opinion binding on MDE or the SBE?
A: AG opinions are persuasive authority. State agencies typically follow them, and a state agency that ignores an AG opinion takes on liability if a court later disagrees. As a practical matter, MDE and the SBE should treat this opinion as the operative answer.

Q: Does this affect K-12 districts or local school boards?
A: No. This opinion is about who is the "agency head" of MDE for the Internal Audit Act. Local school districts have their own boards and their own Internal Audit Act analysis (if they are audit-covered entities), which would turn on their enabling statutes.

Background and statutory framework

The Mississippi Internal Audit Act, Miss. Code Ann. §§ 25-65-1 et seq., creates a framework for internal audit activities at state agencies. The Act assigns specific duties to the "agency head," who must be the right person (or body) for the audit reporting line to function.

Section 25-65-5(d) defines "agency head" by listing three categories: an elected official heading an agency, an executive director, and a governing board or commission responsible for heading an agency. The drafting reflects the variety of governance structures in Mississippi state government: some agencies are run by elected officials (the Treasurer, the Auditor), some by executive directors who report to a governor or a board, and some by boards that are themselves the agency's policymaker.

For MDE specifically, the chain of command is set by Section 37-3-9. The State Superintendent is appointed by the State Board of Education, confirmed by the Senate, and serves at the Board's will and pleasure. The Superintendent administers MDE "in accordance with the policies established by" the SBE, and performs the duties assigned by the SBE under Section 37-3-11. So the Board is structurally above the Superintendent.

Reading Section 25-65-5(d) against that structure, the Board is the entity "responsible for heading" MDE, and the Superintendent is the chief administrative officer who carries out the Board's direction. That maps cleanly onto the AG's holding.

The implication generalizes. When a Mississippi state agency has both a governing board and an executive director, the agency head for Internal Audit Act purposes is whichever body sits at the top of the hierarchy. In MDE's case, that is the SBE.

Citations and references

Statutes:

• Miss. Code Ann. §§ 25-65-1 et seq. (Mississippi Internal Audit Act)
• Miss. Code Ann. § 25-65-5(d) (definition of agency head)
• Miss. Code Ann. § 37-3-9(1) (State Superintendent appointment and authority)
• Miss. Code Ann. § 37-3-11 (Superintendent performs duties assigned by SBE)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2026/03/M.-Mayo-March-10-2026-Agency-Head-of-the-Mississippi-Department-of-Education.pdf

Original opinion text

March 10, 2026

Matt Mayo
Vice Chair, Mississippi State Board of Education
Post Office Box 771
Jackson, Mississippi 39205

Re: "Agency Head" of the Mississippi Department of Education

Dear Mr. Mayo:

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

Background

According to your request, there is an ambiguity in the definition of "agency head" as used in the Mississippi Internal Audit Act, Mississippi Code Annotated Sections 25-65-1 et seq., where there exists both a State Superintendent of Education ("State Superintendent") and a governing board.

Question Presented

Who is the "agency head" for the Mississippi Department of Education ("MDE") as defined in Section 25-65-5(d) — the State Superintendent or the State Board of Education — when both an executive director (State Superintendent) and a governing board (State Board of Education) exist?

Brief Response

Applying the plain meaning of Section 25-65-5(d), the State Board of Education ("SBE") is the agency head of the MDE.

Applicable Law and Discussion

Section 25-65-5(d) of the Mississippi Internal Audit Act defines "[a]gency head" as "an elected official who heads an agency, an executive director or a governing board or commission responsible for heading an agency." You ask who would be considered the agency head of MDE where there is both a State Superintendent and a governing board.

Section 37-3-9(1) states that the State Superintendent "shall be the Chief Administrative Officer of the State Board of Education." The State Superintendent is appointed by the SBE "with the advice and consent of the Senate" and "serves at the board's will and pleasure." Miss. Code Ann. § 37-3-9(1). The State Superintendent is required to administer MDE "in accordance with the policies established by the" SBE. Miss. Code Ann. § 37-3-9(1). He performs the duties assigned to him by the SBE. See Miss. Code Ann. § 37-3-11. It is thus implied that the SBE stands above the State Superintendent given that he is appointed by the board and serves at their pleasure. See Miss. Code Ann. § 37-3-9(1).

Therefore, it is the opinion of this office that the SBE, as "a governing board . . . responsible for heading an agency[,]" is the only entity that meets the definition of "agency head" under Section 25-65-5(d). See Miss. Code Ann. § 25-65-5(d).

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/ Kristi D. Kennedy
Kristi D. Kennedy
Special Assistant Attorney General