Mississippi Advisory Opinions March 06, 1991: 19910306 (March 06, 1991)

Advisory Opinion Text

Ms. Bonnie L. Sides

Acting Director

Mississippi State Personnel Board

301 North Lamar Street

Suite 100

Jackson, Mississippi 39201

Dear Ms. Sides:

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

“This letter constitutes a formal request for an Attorney General's Opinion regarding whether a state agency can require an employee to resign who becomes a candidate for or is appointed to a public office.

Does an employee of the State have to resign his or her position when seeking public office or upon being appointed to a commission or board as provided in Section 7-7-211 Mississippi Code Annotated (1972) ? Further, if such an employee who becomes a candidate for or accepts an appointment to public office does not resign, can the agency then terminate such employee?”

We begin our response by stating that certain state agencies have specific statutory prohibitions against employees being candidates for political office or taking an active part in any political campaign. See Mississippi Code Annotated §§ 43-1-13 (Welfare Department), 45-3-11 (Highway Safety Patrol), 49-1-19 (Mississippi Commission on Wildlife Conservation), and 77-1-25 (Public Service Commission). This does not preclude an employee in the executive branch of government from accepting an appointment to an executive board or commission provided no work or activities relating thereto are carried on during the hours for which said employee is being paid to perform duties with the employing agency.

Since the Legislature has specified the state agencies whose employees are banned from being candidates for political office the doctrine of Inclusio Unius Est Exclusio Alterius (the inclusion of one is the exclusion of another) would be applicable. Therefore, in our opinion, employees of agencies which are not subject to the above or similar statutory restrictions cannot be required to resign in order to become candidates for public office.

Any questions as to whether resignations could be required to avoid conflicts of interest which could be created by virtue of state employees being appointed to boards or commissions must be addressed by the State Ethics Commission.

Sincerely,

Mike Moore Attorney General.

Phil Carter Special Assistant Attorney General.