Mississippi Advisory Opinions October 20, 2006: No. 2006-00517 (October 20, 2006)

No. 2006-00517.

DOCK 2006-00517

Dear Mr. Shoemake:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply. Your letter states:

A City of Collins police officer who is a member of the Mississippi National Guard, was activated to active duty three years ago. At the end of the first year of duty, he volunteered for a second year and at the end of the second year he volunteered for a third year. During this time, the City has been following mandates of Section 33-1-21 and paying the employee his annual leave and other benefits.

The City has received no correspondence or notification from the police officer. Recently, the chief of police learned that the police officer applied for employment with the Mississippi Department of Public Safety, Highway Patrol. He began a 19 week training program on August 13, 2006.

I have learned from the director of training that the police officer and patrol candidate receives a monthly stipend of $1,000.00 a month and is under the control of the Mississippi Highway Patrol during the 19 week training period. However, they tell me that he is not considered a full time employee until he graduates from the academy and that is when his civil service benefits begin.

Additionally, before he began the training program with the Highway Patrol on August 13, 2006 he received orders ordering him to report for active duty with the United States Army on June 14, 2006 for a one year period of service that would end on June 13, 2007.

The City would like to know whether or not the City would be in compliance with the statute if it removed this police officer from its roster of employees and terminated payments for annual leave and other benefits under Section 33-1-21.

Mississippi Code Annotated Section 33-1-21 (a) (Revised 2005) provides in part

All officers and employees of any department, agency, or institution of the State of Mississippi, or of any county, municipality, or other political subdivision, who shall be members of any of the reserve components of the armed forces of the United

States, or former members of the service of the United States discharged or released therefrom under conditions other than dishonorable, shall be entitled to leave of absence from their respective duties, without loss of pay, time, annual leave, or efficiency rating, on all days during which they shall be ordered to duty to participate in training at encampments, field exercises, maneuvers, outdoor target practice, or for other exercises, for periods not to exceed fifteen (15) days, be entitled to leave of absence from their respective duties without loss of time, annual leave, or efficiency rating until relieved from duty, and shall when relieved from such duty, be restored to the positions held by them when ordered to duty, or a position of like seniority, status and pay; provided that such person: (1) when discharged or released from the armed forces shall have received a certificate of satisfactory completion of service, (2) shall be still qualified to perform the duties of such position, (3) shall make application for re-employment within ninety (90) days after the passage of this chapter or within ninety (90) after such person is relieved from such training and service or released from hospitalization for a period of not more than one (1) year for causes attributable to such services.

We assume that the active duty service for the first and second years was continuous. We assume from your letter that the individual in question, for whatever reason, was not on active duty on August 13, 2006 even though he was ordered to report for active duty on June 14, 2006. The above quoted statute, in our opinion, contemplates that one must be actually serving on active duty status in the armed forces in order to be entitled to the benefits provided therein. Therefore, based on the above stated assumptions, we are of the opinion that the City of Collins may lawfully remove the individual in question from its roster of employees and terminate payments for annual leave and any other benefits provided for in Section 33-1-21.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter Special Assistant Attorney General