Can someone serve on a Mississippi community college board of trustees and also be a sheriff at the same time?

Plain-English summary

A community college board of trustees member was elected sheriff. The community college board's attorney asked the AG: can the new sheriff stay on the trustee board?

Yes, said the AG, because both positions are within the same branch of government.

Mississippi's separation of powers (Miss. Const. art. I, § 2) only kicks in when one person tries to hold positions in two different branches that both exercise "core powers." If both positions are in the same branch, dual service is fine.

The two prior categorical determinations are:

• A community college trustee "exercises powers at the core of the executive branch" (MS AG Op., Wiggins, Aug. 30, 2013).
• A sheriff is "a member of the executive branch of government" (Miss. Const. art. V, § 138; Miss. Code Ann. § 19-25-35; Lewis v. Hinds Cnty. Cir. Court, 158 So. 3d 1117, 1124 (Miss. 2015)).

Both in the executive branch. No separation-of-powers conflict. Dual service is constitutionally permitted.

The AG, as is standard, noted that the constitutional analysis is one thing and ethics-rules conflicts are another; the requestor was directed to the Mississippi Ethics Commission for any conflict-of-interest review specific to the sheriff/trustee combination.

What this means for you

Sheriffs and community college trustees

The opinion holds that "[a] sheriff and a member of a community college board of trustees both serve within the executive branch, and the separation of powers doctrine does not prohibit a person from holding more than one position in the same branch of government." So a trustee who is later elected sheriff may continue to serve on the board.

Community college boards

The opinion grounds the trustee's branch in a prior opinion (Wiggins), which held a community college trustee "exercises powers at the core of the executive branch." Because the sheriff is also executive, the opinion finds no cross-branch conflict.

Anyone weighing the question

The opinion limits itself to the separation of powers question and "refer[s] you to the Mississippi Ethics Commission regarding potential conflicts of interest or other ethical implications arising out of simultaneous service." The constitutional answer and any ethics review are separate inquiries.

Common questions

Q: Can a community college trustee who becomes sheriff stay on the board?
A: Yes. The opinion holds that because both a sheriff and a community college trustee "serve within the executive branch," the separation of powers doctrine does not bar holding both at once.

Q: When does the separation of powers doctrine bar dual service?
A: The opinion states it "prohibits a person from holding positions in two different branches of government if both positions exercise 'core powers' within their respective branch," and that it "does not prohibit a person from holding more than one position in the same branch of government."

Q: Why is a sheriff in the executive branch?
A: The opinion cites Lewis v. Hinds Cnty. Cir. Court, 158 So. 3d 1117, 1124 (Miss. 2015), which (citing art. V, § 138 and § 19-25-35) provided that a "sheriff is a member of the executive branch of government."

Q: Does the AG's answer settle ethics or conflict-of-interest questions?
A: No. The opinion expressly limits its scope to separation of powers and refers conflict-of-interest and other ethical questions to the Mississippi Ethics Commission.

Background and statutory framework

The opinion sets out the separation of powers. Article I, § 1 divides Mississippi 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 community college trustee in the executive branch (citing Wiggins, that a trustee "exercises powers at the core of the executive branch") and a sheriff in the executive branch (citing Lewis, art. V, § 138, and § 19-25-35). Because both positions are in the same branch, the opinion concludes that "simultaneous service in these positions does not violate the separation of powers doctrine." It does not reach any cross-branch combination, and it refers ethics questions to the Mississippi Ethics Commission.

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)
• Miss. Const. art. V, § 138 (sheriff as constitutional executive officer)

Statutes:

• Miss. Code Ann. § 19-25-35 (sheriff is a member of the executive branch)

Cases:

• Dye v. State, 507 So. 2d 332 (Miss. 1987) (defining "core powers")
• Lewis v. Hinds Cnty. Cir. Court, 158 So. 3d 1117 (Miss. 2015) (sheriff is in the executive branch)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/12/J.Davis-December-21-2023-Simultaneous-Service-as-Sheriff-and-Member-of-Community-College-Board-of-Trustees.pdf

Original opinion text

December 21, 2023

Jonathan W. Davis, Esq.
Board of Trustees, Mississippi Delta Community College
Post Office Box 29
Indianola, Mississippi 38751-0029

Re: Simultaneous Service as Sheriff and Member of Community College Board of Trustees

Dear Mr. Davis:

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

Question Presented

May a member of the board of trustees of a community college, who is later elected to the public office of sheriff, continue to serve on the board of trustees?

Brief Response

Yes. A sheriff and a member of a community college board of trustees both serve within the executive branch, and the separation of powers doctrine does not prohibit a person from holding more than one position in the same branch of government.

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.

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, this office has opined that a member of a community college board of trustees "exercises powers at the core of the executive branch." MS AG Op., Wiggins at *1 (Aug. 30, 2013). Likewise, the Mississippi Supreme Court has provided that a "sheriff is a member of the executive branch of government." Lewis v. Hinds Cnty. Cir. Court, 158 So. 3d 1117, 1124 (Miss. 2015) (citing MISS. CONST. art. V, § 138; Miss. Code Ann. § 19-25-35). Because a sheriff and a member of a community college board of trustees both serve within the executive branch of government, simultaneous service in these positions 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/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General