Mississippi Advisory Opinions March 16, 1979: 19790316 (March 16, 1979)

Advisory Opinion Text

Mr. Charles H. Chisolm

Acting Executive Director

Mississippi Air & Water Pollution Control Commission

Robert E. Lee Building

Jackson, Mississippi 39205

Dear Mr. Chisolm:

Attorney General A. F. Summer has received your letter of request dated March 13, 1979 which has been forwarded to the undersigned for research and reply. You ask for our opinion as follows:

‘Our Pollution Control Laboratory director is interested in running for chancery clerk of Jeff. Davis County Would you please give us an opinion, in writing, as to whether or not it is permissible for an employee of our agency to run for public office?

‘We have previously written for an opinion from the Office of Special Counsel as to whether or not this agency's employees were subject to prohibitions of the Hatch Act. According to information obtained by the employee, an opinion had been rendered from the Attorney General's Office that employees of agencies that were not 100% federally funded would not be covered by the Hatch Act and would in fact be allowed to seek public office unless restricted by laws of the State. Will you please give us clarification in this matter.’

As to whether nor not it is permissible for an employee of your agency to run for public office, I can find no restriction in the Mississippi Air & Water Pollution Control Law against such employee running for public office. Of course, his candidacy or campaign must not interfere with the full time performance of his duties. Further, no general State statute prohibits this activity.

For your information, I enclose a copy of an opinion dated April 18, 1975 to Mr. Jimmy R. Russell which may be helpful to you.

Also enclosed for your information is a copy of a digest of the Hatch Act as amended which indicates that an employee in federally aided programs may not be a andidate for public elective office in a partisan election. But such employees are no longer prohibited by federal law from taking an active part in political management or in political campaigns.

If this office can be of any further assistance in this matter, please advise.

Sincerely yours,

A. F. Summer, Attorney General.

(Mrs.) Jean R. Richey, Special Assistant Attorney General.

ATTACHMENT

April 18, 1975

Mr. Jimmy R. Russell

Executive Director

Mississippi Department of Youth Services

407 Woolfolk State Office Building

Jackson, Mississippi 39201

Dear Mr. Russell:

Attorney General Summer has received your letter of request dated March 20, 1975 and has assigned it to me for research and reply.

Your letter of request states as follows:

(1) ‘Is there any section of the Mississippi Code which deals with the issue of a state employee running for office?’

(2) ‘Specifically, is a full-time employee of state government required to resign from state employment if he runs for a county or state office? If he is required to resign his employment, at what point must the resignation take place? Is there a provision for taking leave without pay from state employment while running for office?

In answer to the first inquiry as to whether or not the Mississippi Department of Youth Services is controlled by Section 21–31–1, t seq. of the Mississippi Code of 1972, annotated, it is the opinion of this office that that section of the Code deals specifically with municipal employees thus does not control the employees of the Mississippi Department of Youth Services.

As to whether a full-time employee of the Mississippi Department of Youth Services is required to resign from his employment if he runs for a county or state office, it has been determined after careful review of all application state statutes that there is no such requirement. This is true so long as his candidacy or campaign does not interfer with the full-time performance of his duties as a state employee. Nor or we aware of any state statute which would require him to take leave of absence without pay from state employment while running for office.

However, your attention is directed to Title 5, Section 1502, U.S.C.A . This federal statute, commonly referred to as ‘The Hatch Act’, prohibits state or local officers or employees from taking an active part in political management or political campaigns [ Title 5, Section 1502(a)(3)] . Section 1501(4) defines state or local officers or employees to mean ‘. . . an individual employed by a State or local agency whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or Federal agency . . .’ The enforcement provisions of this Act, Section 1506 require the state agency to discharge the employee or suffer the withholding of federal funds in an amount equal to two-years pay at the rate the officer or employee was receiving at the time of the violation.

In view of the foregoing authorities it is my opinion that though there is no state statutory or constitutional requirement that the Department of Youth Services employee described be discharged as a result of his seeking election to a county office, the federal statute as above cited is brought to the attention of your agency.

I trust that this answers your inquiries. If this office can be of further assistance to you please do not hesitate to call upon us.

Sincerely,

A. F. SUMMER ATTORNEY GENERAL, STATE OF MISSISSIPPI

JAMES M. MARD SPECIAL ASSISTANT ATTORNEY GENERAL.