Mississippi Advisory Opinions April 12, 1983: 19830412 (April 12, 1983)

Advisory Opinion Text

Honorable John B. Riemenschneider

Attorney of the Town of Ashland

Post Office Box 98

Ashland, Mississippi 38603

Re: Municipal Employees

Dear Mr. Riemenschneider:

Attorney General Bill Allain has received your letter and has assigned it to me for research and reply.

Your write as Municipal Attorney for the Town of Ashland and state:

“The Mayor of the Town of Ashland has requested that I write you with respect to securing a legal opinion.

“The fact situation is as follows: A municipal employee whose duties include supervision of all municipal workers (with the exception of the Town Clerk and Police Officers) wants to seek public office on a county wide level. He has requested a leave of absence from his job as Foreman.

“The question is as follows: Is the Town of Ashland required to grant a municipal employee a leave of absence so that said employee can seek county wide elective office? The Town is particularly concerned about not doing anything to negate one's civil rights including the right to seek public office and rights with respect to freedom of expression. At the same time the Town is concerned that the orderly functioning of municipal services continues up to and including the dates for holding primary elections in Mississippi.

“I would sincerely appreciate your guidance on this matter.”

It is understood that Ashland has a Code charter form of municipal government.

There are no Mississippi statutory provisions which require the Ashland municipal governing authorities to grant the employee's request for a leave of absence for the prupose described and we are not aware of other authority which may require such grant.

If the governing authorities have established a leave program which permits earned annual leave with pay, of course the employee may with the approval of the governing authorities take accrued leave.

The provisions of Chapter 3 of Title 21 of the Mississippi Code of 1972, Annotated, govern Code charter municipalities and Section 21-3-5 therein provides in part:

Ҥ 21-3-5. Appointive officers.

From and after the expiration of the terms of office of present municipal officers, the mayor and board of aldermen of all municipalities operating under this chapter shall have the power and authority to appoint a street commissioner, and such other officers and employees as may be necessary, and to prescribe the duties and fix the compensation of all such officers and employees. All officers and employees so appointed shall hold office at the pleasure of the governing authorities and may be discharged by such governing authorities at any time, either with or without cause. ... The terms of office or employment of all officers and employees so appointed shall expire at the expiration of the term of office of the governing authorities making the appointment, unless such officers or employees shall have been sooner discharged as herein provided.”

Under the provisions of Section 21-3-5, the governing authorities could grant the employee upon the employee's request a leave of absence without pay for a reasonable period of time.

Should such employee qualify and run for county office that person cannot:

1. Campaign during the hours when the employee is or should be occupied or on duty as an employee;

2. Conduct a campaign which interferes with the prompt and efficient discharge of the duties of the position or employment;

3. Use position or employment to induce or coerce Ashland employees to vote for, campaign for, or contribute money or anything of value to candidate's campaign; nor, 4. Use any Ashland municipal funds, property, or facilities, to assist in the conduct of a campaign.

With kind regards, I am

Very truly yours,

Bill Allain Attorney General