Mississippi Advisory Opinions March 26, 1979: 19790326 (March 26, 1979)

Advisory Opinion Text

Mr. John W. Campbell

City Clerk—City of West Point

Post Office Box 1117

West Point, Mississippi 39773

Re: Municipalities—Elections—Political Activities of Employees

Dear Mr. Campbell:

Attorney General A. F. Summer has received your letter and has assigned it to me for research and reply.

Your letter states:

‘The City Board has directed that I request your opinion on a Section in our personnel policy. The Section applies to employee political activity as follows. SECTION XV: Employee Political Activity

A. This policy is stated to preserve a workforce designed to achieve maximum public service and to maintain both the integrity of City employees and the respect of the public which they serve.

B. Any political activity by employees of the City of West Point on City property and during City working hours is expressly prohibited.

C. Any City employee who qualifies and runs for any Public Elected Office shall be required to take a leave of absence, without pay, thirty (30) days before the date of the election and such leave of absence shall run until the designated election date.

D. Any City employee who is elected to a local, state, or federal office shall permanently resign his or her position with the City prior to taking office.

‘The Board desires to know if this Section is in violation of the 1964 Voting Rights Act, the Hatch Act or any recent Supreme Court decisions.’

Initially, we are obliged to say that that part of your inquiry relating to the Hatch Act is not susceptible to an opinion of this office since it would require an opinion concerning a Federal statute. However, we can state that The Hatch Act (5 U.S.C. 1501 – 1508) is enforced by the United States Civil Service Commission and that the enclosed copy of Summary Statement Regarding Political Activity of State and Local Officers and Employees includes instruction on how to apply to the Commission for assistance in resolving any question as to whether the Act applies.

Attached for your information and reference is a copy of a letter of January 29, 1979, from this office to Honorable Stephen W. Rimmer of Jackson, which is relevant to your inquiry.

The attached copy cites and discusses the recent United States Supreme Court case of Dougherty Co., Georgia, Board of Education, et al v. John E. White , 439 U.S. 32. 58 L.Ed 2d 269, 99 S.Ct. 368. The Dougherty County case treated the matter of a requirement that an employee of a county board of education was required to take a leave of absence without pay upon becoming a candidate for elective office. This requirement is similar to paragraph C. of Section XV of your personnel policy.

Dougherty County did not decide the substantial question of the constitutionality of the employee leave requirement in that case. It did decide that such a requirement imposed after the effective date of Section 5 of the Voting Rights Act of 1965 should be submitted for Federal approval before implementation.

We, therefore, are of the opinion that if the City of West Point, or its agencies, are to attempt enforcement of the requirement of paragraph C, supra, then the requirement should be submitted to the Office of the Attorney General of the United States for preclearance.

Noting the language in Dougherty County expressing the Court's concern for the possibility of discrimination resulting from constraints on employee political activity, it is recommended that you consider submitting the requirements of paragraphs B. and D. of Section XV of your personnel policy for preclearance.

We trust this will be of assistance to you.

With kind regards, I am

Very truly yours,

A. F. Summer Attorney General.

S. E. Birdsong, Jr. Special Assistant Attorney General.