Mississippi Advisory Opinions December 06, 2002: AGO 000015360 (December 6, 2002)

AGO 000015360.

Dear Ms. Clay:

Attorney General Mike Moore has received your letter of request and assigned it to me for research and reply. Your letter states:

Would you be so kind to answer the following questions and give me a written response.

Question: If a state employee (Game Warden) retires with State retirement and runs for and is elected to public office, how much income can he receive from the elected office and continue to draw his state retirement?

Question: If this employee's retirement date is June 30, 2003, can he qualify in January 2003 and delay campaigning until after his retirement date, June 30, 2003.

In a telephone conversation you informed us that the elected position in question is a county office.

Mississippi Code Annotated Section 25-11-127 (Supp. 2002) is the statute that sets forth certain compensation conditions under which one who has retired as a member of the Public Employees' Retirement System of Mississippi (PERS) may be re-employed or elected to public office. Section 25-11-127 (5) provides:

Any member may continue in municipal or county elected office or be elected to a municipal or county office, provided that the person:

(a) Files annually, in writing, in the office of the employer and the office of the executive director of the system before the person takes office or as soon as possible after retirement, a waiver of all salary or compensation and elects to receive in lieu of that salary or compensation a retirement allowance as provided in this section, in which event no salary or compensation shall thereafter be due or payable for those services; however, any such officer or employee may receive, in addition to the retirement allowance, office expense allowance, mileage or travel expense authorized by any statute of the State of Mississippi; or

(b) Elects to receive compensation for that elective office in an amount not to exceed twenty-five percent (25%) of the retiree's average compensation. As used in this paragraph, the term "compensation" shall not include office expense allowance, mileage or travel expense authorized by a statute o f the State of Mississippi. In order to receive compensation as allowed in this paragraph, the member shall file annually, in writing, in the office of the employer and the office of the executive director of the system, an election to receive, in addition to a retirement allowance, compensation as allowed in this paragraph.

In response to your first question, the above quoted statute authorizes a state retiree who is elected to a municipal or county office, after making the required filings, to receive compensation for serving in that elective office an amount not to exceed twenty-five (25%) of said retiree's average compensation to be paid on a pro-rata basis. The term "average compensation" is defined in Section 25-11-103(f) as "the average of the four (4) highest years of earned compensation reported for an employee in a fiscal or calendar year period, or combination thereof which do not overlay, or the last forty-eight (48) consecutive months of earned compensation reported for an employee."

For additional information on this matter, please see the enclosed copy of an opinion address to Judge Joe C. Webster, dated September 20, 2002.

In response to your second question, Section 49-1-19 (1) is specifically applicable to the Mississippi Commission on Wildlife, Fisheries and Parks. It provides:

No member of the commission, the executive director, administrative officer, employee, supervisor or conservation officer shall be active in any manner for or on behalf of his own candidacy or the candidacy of any candidate for any public office during his term of office or employment with said department. Violation of this subsection shall constitute a Class II violation and upon conviction thereof the violator shall be punished as provided in Section 49-7-143 for each offense. A conviction shall render vacant the office or position of the violator.

In Callahan v. Leake County Democratic Executive Committee, 773 So.2d 938 (Miss. 2000) the Mississippi Supreme Court ruled that Section 49-1-19 prohibits conservation officers and other officers and employees of the Mississippi Department of Wildlife, Fisheries, and Parks who violate Section 49-1-19 from continuing in their employment. However, it does not disqualify them from seeking or holding a political office. It is our opinion that qualifying for office constitutes activity in violation of the statute.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General