Mississippi Advisory Opinions March 14, 1997: AGO 000011862 (March 14, 1997)

AGO 000011862.

Dear Mr. Perkins:

Attorney General Mike Moore has received your request for an official opinion of this office and has assigned it to me for a reply. In your letter you state that a municipal special projects coordinator has qualified as candidate for mayor in the Democratic Primary. You state that the Special Projects Coordinator performs tasks that include the preparation and submission of grant applications including Community Development Block Grants and Federal Law Enforcement Grants. You inquire as follows:

1. With respect to the information outlined above, is the Special Projects Coordinator for the City of Starkville, MS, prohibited from being a Democratic candidate or any candidate of any other party for the position of Mayor for the City of Starkville pursuant to The Hatch Act?

2. If the response to question #1 is yes, does that mean that the candidacy of our Special Projects Coordinator for the position of Mayor as a Democratic Candidate is null and void and shall have no other force and effect?

3. If the response to question #1 is yes, should the name of such Special Projects Coordinator be placed on the ballot for the upcoming 1997 Municipal Elections by the appropriate person or persons?

Pursuant to Miss. Code Ann. Section 7-5-25, the Attorney General is authorized to issue official opinions on questions of law only. Therefore, we cannot by official opinion make a factual determination. Moreover, application of The Hatch Act is a matter of federal law. This office does not interpret federal law. By way of information, however, we offer the following unofficial comments.

As you noted in your letter of request, we have previously stated that employees of state and local government who are principally employed in connection with an activity which is funded in whole or in part by loans or grants made by the United States or a federal agency are prohibited from being candidates in partisan elections pursuant to The Hatch Act, 5 U.S.C. 1501 et seq. MS AG Ops., Robinson (November 1, 1996); Gillion (July 27, 1979); Holland (March 18, 1985); Pittman (June 15, 1995), attached. The Hatch Act defines "partisan election" as one in which there are candidates in the race that are seeking the nomination of or are the nominees of a party that had a candidate receive electoral votes in the preceding presidential election. 5 U.S.C. 1503. For example, an employee could run as an independent candidate, but if there is a Republican or Democrat on the ballot, he would be participating in a partisan election. Special elections are normally non-partisan elections and therefore would not be prohibited under The Hatch Act.

The decision as to whether a candidate is qualified to be placed on the ballot is for the municipal executive committee to make for primary elections and for the municipal election commission to make for the general election. The Hatch Act does not disqualify candidates from seeking office.

You may want to contact the United States Attorney General for clarification of the applicability of this federal law to your particular situation.

If this office can be of any further assistance, please let us know.

Very truly yours,

MIKE MOORE,

ATTORNEY GENERAL

By: Sandra M. Shelson

Special Assistant Attorney General