Mississippi Advisory Opinions August 31, 1983: 19830831 (August 31, 1983)

Advisory Opinion Text

Mr. Allen L. Burrell

Attorney for the Claiborne County Board of Supervisors

Post Office Box 366

Port Gibson, Mississippi 39150

Dear Mr. Burrell:

Attorney General Bill Allain has received your opinion request with attachments and has assigned it to me for research and reply, your letter of request stating:

“We have the pleasure of representing the Claiborne County Board of Supervisors and as such they have posed to us a question and have asked that we forward it to you for an answer.

“The Claiborne County Board of Supervisors have received a letter from an employee in the office of the Civil Defense, a copy of which is enclosed as Exhibit “A” to this letter.

“The employee has requested a decision from the County Board in regard to her candidacy for public office in Claiborne County, specifically Circuit Clerk, and whether she would be allowed to continue in her capacity as secretary to the Civil Defense director.

“Additionally, two deputy sheriffs have made known their intentions to seek political office, one for the office of Supervisor, and one for the office of Justice Court Judge.

“Claiborne County, Mississippi has passed a personnel policy and procedure manual, and a copy of the same is enclosed for you being Exhibit “B” to this letter consisting of 32 pages. You are specifically referred to Section II—General Provisions: Personnel Rules and Regulations, paragraph number 5.

“The question that the County Board of Supervisors has asked that we pose to you is whether or not they have the authority to place the employees on automatic leave of absence without pay, or whether any or all three of the above individuals would be protected through the Hatch Act or any other applicable laws, which would entitle them to retain their present positions while pursuing a public office.

“Should you need any additional information, please do not hesitate to contact our office.”

This office is not authorized to issue after-the-fact opinions as to action already taken by a governmental body, as that can be done only by a court of competent jurisdiction.

However, we do direct your attention to the United States Supreme Court decision of Daugherty County, Georgia, Board of Education v. White , 439 U.S. 32, 58 L.Ed. 269, 99 S.Ct. 368 (1978).

In summary, that case states that a county board of education in a state covered by the Voting Rights Act of 1965 must seek federal approval under Section 5 of said Act of a rule requiring its employees to take unpaid leaves of absence while they campaign for elective office and that such a rule may not be enforced unless federal approval is first obtained.

While the above decision speaks directly to school employees, this office is of the opinion that the legal principles involved would also be applicable to similar rules adopted by boards of supervisors.

The Hatch Act, being a federal act having to do with the interpretation and application of a federal law, would be subject or susceptible to an opinion not of this office but of the U.S. Civil Service Commission.

Yours very truly,

Bill Allain Attorney General.