Mississippi Advisory Opinions February 11, 2000: AGO 2000-0042 (February 11, 2000)

Advisory Opinion Text

Mr. Kenneth I. Warren

Executive Director

Mississippi Department of Transportation

Post Office Box 1850

Jackson, Mississippi 39215-1850

Re: Employees Running for Office

Dear Mr. Warren:

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

Your inquiry concerns political activities of employees of your department who are not subject to the federal Hatch Act because they are in purely state-funded positions.

You present four questions which we will quote and respond to separately.

1. We are aware of the March 6, 1998 Opinion which states that employees may take personal leave to engage in political activities, which in that instance consisted of assisting a candidate by handing out literature. Does this extend to authorizing long-term personal leave for the employee to run for office?

We preface our response by stating that employees of certain state agencies are subject to statutory restrictions on political activity. Therefore this opinion will not be applicable to all state agencies and their employees. See Mississippi Code Annotated Sections 43-1-1 & 43-1-13 (Department of Human Services), 45-3-11 (Highway Safety Patrol), 47-5-89 (Department of Corrections), 49-1-19 (Wildlife Commission) and 77-1-25 (Public Service Commission).

In our opinion addressed to Mark D. Ray, Esquire, dated March 6, 1998 we said that “(i)t continues to be the opinion of this office that there is no statutory prohibition against a state employee taking personal leave to campaign on behalf of a candidate.” Likewise, we know of no statutory prohibition against the granting of long-term personal leave for an employee to run for office.

In our opinion addressed to Charles S. Head, Esquire, dated March 21, 1997 we said that “(t)he scheduling of personal leave is within the discretion of the agency head or appointing authority. The only qualification on that discretion is that leave must not be unreasonably or arbitrarily withheld.” We also said that “(t)he agency head can impose any reasonable restriction on the employee's use of leave so that the work and efficiency of the agency not be impaired.” Of course, the appointing authority may not grant personal leave in excess of what has been earned and accumulated by the employee. See Section 25-3-93(3).

2. If the answer to the previous question is in the negative, may we still authorize the employee to take an unpaid leave of absence to run?

In our opinion to you dated June 12, 1998 we said that “(l)eave without pay may be granted only after exhaustion of all other forms of leave accrued by the officer or employee.” This was in the context of an employee who, because of an injury or illness was physically unable to work.

In the context of an employee who has qualified as a candidate for an elective office, we are of the opinion that once the employee has exhausted all accrued personal leave and all lawfully accumulated compensatory leave, the appropriate appointing authority may lawfully grant said employee a leave of absence without pay.

3. To comply with the spirit of Section 23-15-871 of Miss. Code Ann. (1972) and to avoid the appearance of impropriety we feel that an employee should go on extended leave while campaigning for a full time office. Can we require this?

As stated above, the scheduling of personal leave is within the discretion of the agency head who may impose any reasonable restriction on employees' use of leave in order to insure the work and efficiency of the agency is not impaired. However, we are of the opinion that an agency head may not require an employee to take extended personal leave while he or she is a candidate for public office.

We understand your desire to avoid any appearance of impropriety by an employee who is running for political office. While we have consistently said that, as a general rule, public employees may engage in political activities when on personal leave, any employee who engages in political activity proscribed by Section 23-15-871 while at work, would be subject to disciplinary action.

The U.S. Supreme Court has specifically addressed the issue of requiring employees to be on an unpaid leave of absence upon becoming candidates for public office in jurisdictions, such as the State of Mississippi, which are subject to coverage under the federal Voting Rights Act of 1965.

The Court in Dougherty County, Georgia, Board of Education v. White , 439 U.S. 32, 58 L.Ed.2d 269, 99 S.Ct. 368 (1978) ruled that a county board of education in a state covered by the Voting Rights Act of 1965 must seek and obtain federal approval under Section 5 of said Act prior to enforcement of a rule requiring its employees to take unpaid leaves of absence while campaigning for public office. We are of the opinion that this ruling has general application and would apply to state agencies.

4. If the answer to the previous question is in the affirmative, may we insist the employee go on leave at the time of qualifying or must the person be allowed to remain at work until active campaigning begins?

We believe our response to your third question renders this question moot.

Sincerely,