Mississippi Advisory Opinions December 03, 1991: AGO 000005521 (December 3, 1991)

AGO 000005521.

Dear Dr. Cleere:

Attorney General Mike Moore has received your request for an official Attorney General's Opinion and assigned it to me for research and reply. Your specific opinion request states:

During this election year (as in the past), the employees of the University of Mississippi have qualified for and run for political office. As employees, these candidates have accumulated personal leave which they wish to use during their campaign.

Sec. 25-9-93, Miss. Code of 1972 (Supp.1990), states in pertinent part:

(4) Employees are encouraged to use earned personal leave. Personal leave may be used for vacations and personal business as scheduled by the appointing authority ..." (Emphasis added.)

In line with this applicable statutory language, the Board of Trustees of State Institutions of Higher Learning adopted the following section in its Policies and Bylaws:

801.10 POLITICAL ACTIVITIES. Participation by employees of the several institutions of higher learning in various community and public affairs is expected; however, it is expected that time given such activities will not interfere with the regular duties of the employees. Political activities by an employee will not be prohibited at such times as the employee would not be ordinarily required to render services to the institution or if the employee elects to take and the institution grants a leave of absence without pay.

From time and time, an employee will request that the institution grant him personal leave with pay to and including time accumulated. The University interprets Sec. 25-3-93(4) and Board Policy to indicate that an employee who qualifies for office must take leave without pay should he request utilization of personal leave. Are we correct in our application of this Board Policy which appears to be discretionary with the "appointing authority," i.e., the institution? In addition to Sec. 25-3-93(4), Section 25-3-93, Miss. Code of 1972 (Supp. 1990), states in pertinent part:

(2)....The time for taking personal leave, except when such leave is taken due to an illness, shall be determined by the appointing authority of which such employees are employed.

It is this office's opinion that if a state employee elects to take personal leave pursuant to Miss. Code Ann. Section 25-3-93 (Supp. 1990) the "appointing authority", i.e., the state agency or institution has the discretion to approve or disapprove personal leave as timed or scheduled as provided for by Miss. Code Ann. Section 25-3-93 (2) and (4) (Supp. 1990). Provided, however, approval of leave time may not be arbitrarily withheld or withheld without justifiable cause merely because a person is a candidate for public office and without other legitimate reason.

Consistent with this opinion, we attach and incorporate the prior opinion of this office to Maher dated March 25, 1991. To the extent the Board policy or application of it is contrary to this discretion, the Board policy or it's application violates state law.

Please let us know if we can be of further assistance.

Sincerely,

Maudine G. Eckford Special Assistant Attorney General MGE/ped Enclosure