Can a Mississippi county zoning enforcement officer keep her county job if she's elected to city council?

Plain-English summary

A county employee in Hancock County wanted to run for city council in Bay St. Louis. Her county job: solid waste/zoning enforcement officer. The duties listed in the request: respond to citizen complaints, conduct field investigations, issue warning notices, prepare evidence in support of legal action, maintain documentation, prepare written reports, patrol problem areas, and similar work. She reports to the county building official, who reports to the county administrator.

The county attorney asked whether the separation of powers doctrine would bar simultaneous service on the city council if she won.

The AG said no. The separation of powers doctrine prohibits a person from holding positions in two different branches of government if both positions exercise "core powers" of their branch. A city council member is in the legislative branch (Section 21-8-9 establishes that). A county employee in the executive branch can have a separation-of-powers conflict only if her county role exercises core executive powers.

Core powers are the policy-making, upper-level activities of government, per Dye v. State. Low-level administrative matters do not count. The duties listed in the request (responding to complaints, investigating, issuing warnings, documenting, reporting) are administrative, not policy-making. The AG had previously opined that a county inventory clerk/safety officer with similar ministerial duties did not exercise core powers (Turnage 2008).

The AG also noted the chain of supervision: the solid waste/zoning officer reports to the building official, who reports to the county administrator. The Mississippi Court of Appeals held in Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So. 2d 853 (Miss. Ct. App. 1999) that the county administrator does not exercise core powers. It follows that subordinates of the administrator likewise do not exercise core powers.

The AG flagged caveats. The opinion is based narrowly on the job description as presented. A change in duties could change the answer. And the AG would not address ethics-side questions (potential conflicts of interest in voting on matters that affect the county); those go to the Mississippi Ethics Commission.

What this means for you

For county employees considering running for city or town office

The opinion holds that the separation of powers doctrine bars dual service in two branches only when both positions exercise "core powers," meaning ongoing, upper-level governmental activity with substantial policy-making character (Dye v. State). It found the county solid waste/zoning enforcement officer's listed duties (responding to complaints, issuing warning notices, documenting, reporting) administrative, not core, so the doctrine did not bar her from also serving on the city council. The AG expressly limited the opinion to the separation of powers question and based it solely on the job description presented, noting "a change in job description . . . may also change the answer."

For county attorneys and city attorneys advising candidates

The opinion applies the Dye framework and the branch designations: a city council member holds legislative-branch office under Section 21-8-9, and a county officer serves in the executive branch. It also weighs the chain of supervision: because the officer reports to the building official, who reports to the county administrator, and the Court of Appeals held in Zimmerman that the county administrator does not exercise core powers, the AG concluded the subordinate officer likewise does not.

On conflict-of-interest questions

The opinion does not address potential conflicts of interest from simultaneous service. The AG referred those questions to the Mississippi Ethics Commission under Mississippi's Ethics in Government Laws, Sections 25-4-101 et seq.

For voters

The opinion holds that the separation of powers bar applies to officials exercising core (policy-making) powers in another branch, not to administrative or ministerial employees, so a lower-level county employee like the one described is not barred from also serving on a city council.

Common questions

What is "core power"?
Core power is ongoing activity at the upper level of government with substantial policy-making character. Dye v. State, 507 So. 2d 332, 343 (Miss. 1987). Hiring and firing department staff, setting agency policy, controlling a department budget, representing the entity to outside agencies on policy: those are typical core powers. Day-to-day enforcement of rules someone else wrote is not.

Can a county supervisor sit on a city council?
A county supervisor exercises core executive powers (county budget, county policy, hiring authority). A city council member is in the legislative branch. The dual role would likely violate separation of powers. The AG has addressed similar pairings repeatedly with that result.

Does it matter if the council position is part-time?
The branch designation does not turn on time commitment. A city council seat is legislative, full or part time. The same analysis applies.

What if the county job duties change?
The opinion is expressly based solely on the job description presented and cautions that "a change in job description for the County's solid waste/zoning officer may also change the answer." If new duties brought core-power (policy-making) character, the separation-of-powers analysis could come out differently.

Could the county council seat affect the city council vote on county matters?
That is the ethics question, not the separation of powers question. The Mississippi Ethics Commission is the right authority. Section 25-4-101 et seq. governs conflicts of interest, and recusal is the typical remedy.

Background and statutory framework

Article I, Section 2 of the Mississippi Constitution establishes separation of powers among the legislative, executive, and judicial branches.

The Mississippi Supreme Court has interpreted that section to prohibit dual service in two branches when both positions exercise "core powers." Dye v. State, 507 So. 2d 332, 343 (Miss. 1987). Core power means activities ongoing and at the upper level of governmental affairs with substantial policy-making character. Low-level administrative matters do not qualify.

Section 21-8-9 establishes that members of city councils hold office in the legislative branch. County officers and employees serve in the executive branch. The AG has confirmed both branch designations in numerous opinions including MS AG Op., Turnage (Oct. 10, 2008) and MS AG Op., Cobbins (Oct. 7, 2005).

Whether a particular county employee exercises core executive powers is a fact-specific call. The AG looks at the job description and the chain of supervision. Where duties are administrative and the employee reports through administrative supervisors who themselves do not exercise core powers (Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So. 2d 853 (Miss. Ct. App. 1999)), the dual-role bar typically does not apply.

The AG narrowly limits this opinion to the separation of powers question. Conflict-of-interest issues are governed by Mississippi's Ethics in Government Laws, Sections 25-4-101 et seq., and addressed by the Mississippi Ethics Commission.

Citations

• Miss. Const. art. I, § 2 (separation of powers)
• Miss. Code Ann. § 21-8-9 (city council member as legislative branch officer)
• Dye v. State, 507 So. 2d 332, 343 (Miss. 1987) (definition of core power)
• Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So. 2d 853, 860 (Miss. Ct. App. 1999) (county administrator does not exercise core powers)
• MS AG Op., Hudson (June 26, 2020) (separation of powers framework)
• MS AG Op., Turnage (Oct. 10, 2008) (city council member is in legislative branch; county inventory clerk/safety officer does not exercise core powers)
• MS AG Op., Cobbins (Oct. 7, 2005) (county officer in executive branch)
• MS AG Op., Liner (Jan. 31, 2020) (county administrator does not exercise core powers)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2025/03/G.-Yarborough-March-13-2025-Separation-of-Powers-City-Council-and-County-Solid-Waste-Zoning.pdf

Original opinion text

March 13, 2025

Mr. Gary Yarborough, Esq.
Attorney, Hancock County
854 Highway 90
Bay St. Louis, Mississippi 39520

Re: Separation of Powers: City Council and County Solid Waste/Zoning Enforcement Officer

Dear Mr. Yarborough:

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

Background

According to your request, a county employee intends to run for city council in Bay St. Louis where, if elected, she will be one of seven council members. Bay St. Louis operates a mayor-council form of government. The county employee presently serves as the solid waste/zoning enforcement officer for Hancock County (the "County"). She reports to the County's building official, who in turn reports to the county administrator. A summary of the job description for the position of solid waste/zoning enforcement officer is as follows:

• Perform a variety of field and office work in support of the County's zoning ordinance and solid waste enforcement program
• Receive and respond to citizen complaints and reports from other agencies and departments on alleged violations
• Conduct field investigations
• Issue and post warning notices
• Prepare evidence in support of legal action taken by the County or solid waste authority
• Maintain accurate documentation and case files on all investigations, inspections, and enforcement actions
• Prepare a variety of written reports, memos, and correspondence related to enforcement activities
• Patrol assigned areas to identify and evaluate problem areas and/or ordinance violations
• Operate computer to enter, process, and acquire data
• Perform related duties required

Question Presented

Does the separation of powers doctrine prohibit the County's solid waste/zoning enforcement officer from keeping employment if elected to a city council position?

Brief Response

Based narrowly on the job description as presented in your request, because the County's solid waste/zoning officer does not exercise core powers, the separation of powers doctrine does not prohibit the County's solid waste/zoning enforcement officer from keeping employment if elected to a city council position.

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. Additionally, this opinion is based solely on the job description presented in your request. A change in job description for the County's solid waste/zoning officer may also change the answer to this request.

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)). "[L]ow level administrative matters," on the other hand, do not equate to an exercise of core power. Dye, 507 So. 2d at 343.

To begin, "[i]t is clear, based upon the language in Mississippi Code Annotated Section 21-8-9, that a member of the city council holds an office within the legislative branch of government." MS AG Op., Turnage at 2 (Oct. 10, 2008). A county officer, on the other hand, serves in the executive branch of government. See, e.g., id.; MS AG Op., Cobbins at 1 (Oct. 7, 2005). In your request, you provide the job description for the County's solid waste/zoning officer. The description does not appear to include duties within the "upper level of governmental affairs" with "policy-making character." Dye, 507 So. 2d at 343. Rather, the listed duties are administrative in nature, for example, responding to citizen complaints, issuing warning notices, maintaining documentation, and preparing a variety of written reports. This indicates that the County's zoning enforcement/safety officer does not exercise core powers within the executive branch. See MS AG Op., Turnage at *2 (opining no separation of powers violation for a member of the city council to simultaneously serve as a county inventory clerk/safety officer with ministerial duties due to lack of core powers in county positions).

Further, you state that the County's solid waste/zoning enforcement officer reports to the County's building officer, who in turn reports to the county administrator. "[T]he Mississippi Court of Appeals has held the county administrator does not exercise core powers." MS AG Op., Liner at 1 (Jan. 31, 2020) (citing Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So. 2d 853, 860 (Miss. Ct. App. 1999)). It thus follows that, here, the County's solid waste/zoning enforcement officer likewise does not exercise core powers. See MS AG Op., Turnage at 1-2 (concluding county inventory clerk/safety officer working under county administrator does not exercise core powers). It is therefore the opinion of this office that regarding this particular job description, the separation of powers doctrine does not prohibit the County's solid waste/zoning enforcement officer from keeping employment if elected to a city council position.

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