Mississippi Advisory Opinions January 30, 2009: No. 2009-00017 (January 30, 2009)

No. 2009-00017.

Dear Ms. St. Pe':

Attorney General Hood has received your requests for an official opinion and it has been assigned to me for research and reply.

Questions Presented

(1) Can a police officer employed by the City of Gautier be a candidate for office in the upcoming City of Gautier elections while continuing his employment as a police officer for the city?

(2) If elected as Mayor or Councilman, may this person become employed as a law enforcement officer in the Jackson County Sheriff's office, with another municipality's police department, or another county's Sheriff's department?

(3) If the answer to Question 2 is no, may the police officer be employed in an administrative capacity with any of the employers listed in Question 2?

(4) Can an individual serve as a Mayor or Councilman in Gautier and be employed as either an armed or unarmed security officer for a hospital owned by Jackson County?

(5) Can a person serve as a Mayor or Councilman in one muncipality and work for another municipality, excluding law enforcement work, without violating the separation of powers doctrine.

(6) Can the City of Gautier pay for the health insurance premiums for the Mayor and members of the City Council?

(7) What effect does Miss. Code Ann. Section 21-9-71 (1972) have on a police officer's ability to qualify and run for Mayor or Councilman in the City of Gautier? How does Section 21-9-71 work with Section 21-31-27?

(8) What effect does Miss. Code Ann. Section 21-9-71 have on any employee of a council manager form of government from participating in any way both on and off duty in municipal elections? How does Section 21-9-71 work with Section 21-31-27?

Background

In your letter and in our telephone conversations you have explained that a police officer employed by the City of Gautier has qualified or intends to qualify as a candidate for either mayor or councilman for the City of Gautier's elections later this year.

You further advised that the City of Gautier operates under the Council-Manager form of government and under the authority granted in Miss. Code Ann. Section 21-31-3 (1972), it has adopted by ordinance the municipal civil service system provided for in Miss. Code Ann. Sections 21-31-1 through 21-31-27(1972). The subject police officer is covered by the city's civil service system.

Applicable law

Miss. Code Ann. Section 21-31-27 (1972) reads as follows:

No person holding any office, place, position or employment subject to civil service, is under any obligation to contribute to any political fund or to render any political service to any person or party whatsoever, and no person shall be removed, reduced in grade or salary, or otherwise prejudiced for refusing so to do. No public officer, whether elected or appointed, shall discharge, promote, demote or in any manner change the official rank, employment or compensation of any person under civil service, or promise or threaten so to do, for giving or withholding, or neglecting to make any contribution of money, or service, or any other valuable thing, for any political purpose.

If any person holding any office, place, position or employment subject to civil service, actively participates in political activity in any primary or election in a municipality where he is employed, it shall be deemed cause for removal.

Miss. Code Ann. Section 21-9-71 (1972) reads as follows:

Any officer or employee other than the mayor and councilmen of any such city, who shall solicit or attempt to influence any person to vote for any particular candidate at any election held in such city, or who shall in any manner contribute any money, labor or other valuable thing to any person or organization for election purposes, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not exceeding one hundred dollars ($100.00), or by imprisonment in the county jail not exceeding thirty days, or by both such fine and imprisonment.

Analysis and Conclusions

Responses to your individual questions are as follows:

Question 1: As provided in Section 23-31-27, if a police officer employed by the City of Gautier qualifies for an elective office for the City of Gautier, or otherwise campaigns for such office, the police officer would be subject to removal or termination. This would be a personnel matter to be handled in accordance with Section 21-31-23 and the civil service rules adopted by the city.

Furthermore, such police officer could be prosecuted for a misdemeanor as provided in Section 21-9-71.

Question 2: The office of Mayor is in the executive branch of government, as are the three law enforcement positions you have enumerated. The office of Councilman is in the legislative branch of government. As provided in Sections 1 and 2 of the Mississippi Constitution of 1890, any person occupying a position in one branch of government accepts a position in another branch of government, and both such positions exercise "core powers" as provide in Dye v. State , 507 So.2d 332 (Miss.1987), that person thereby vacates the office originally held. This is the separation of powers doctrine discussed in an opinion last December to the City of Gautier, MS AG Op., Wilkinson (December 12, 2008).

Thus, a Mayor could accept a position in one of the three law enforcement positions you enumerated without violating the separation of powers doctrine. However, if a city councilman accepts a position as a law enforcement officer, he would have to vacate his position as a city councilman, since the two offices are in different branches of government.

Question 3: The answer to this question would have to be addressed on a case by case basis and would depend on the exact employment position and job responsibilities of the "administrative" position accepted. In general, only those positions which exercise "core powers" as described in Dye v. State are subject to the separation of powers doctrine.

Question 4: As stated in our response to Question 2, a Councilman is in the legislative branch of government. In MS AG Op., Sockwell (February 22, 2008), we stated that a position would not be subject to the separation of powers doctrine if "you would be a civilian employee and would no longer possess the "core" powers of a law enforcement officer described in Section 45-6-3 of the Mississippi Code as one employed ... 'and duly sworn and vested with the authority to bear arms and make arrests, and whose primary responsibility is the prevention and detection of crime, the apprehension of criminals and the enforcement of the criminal and traffic laws of this state and/or ordinances of any political subdivision thereof'." Thus, if the security officer is not a "law-enforcement officer" as defined in Miss. Code Ann. Section 45-6-3 (1972), then the position is not subject to the separation of powers doctrine and a city councilman would not have to vacate his office in order to accept employment as such a security officer.

The office of Mayor is in the executive branch. A security officer employed by a county-owned hospital is likewise in the executive branch of government. There would be no violation of the separation of powers doctrine for the Mayor to accept the described security officer position.

Question 5: As we stated in our reply to Question 3, "administrative" positions would have to be evaluated on a case by case basis to determine if they possess "core powers" as described in Dye v. State.

Question 6: Pursuant to Miss. Code Ann. Sections 25-15-101 and 25-15-103 (1972), the governing authorities of a municipality may provide group health insurance policies for all employees or specified groups of employees and their dependents and may pay the premiums for this coverage for both employees and dependents. MS AG Op., Baker (June 23, 2000).

Question 7: In Callahan v. Leake County Democratic Executive Committee , 773 So. 2d 938 (2000), the Mississippi Supreme Court held that even where a public employee may be subject to prosecution for a misdemeanor for qualifying for elective office, he is not disqualified from running for office unless the statute specifies that the public employee-candidate shall be unqualified to run or disqualified from office. It is our opinion that the police officer running for municipal office in the City of Gautier is subject to personnel disciplinary actions by the city, in conformance with Section 21-31-23 and the city's civil service rules, should he be convicted under Section 21-9-71. He is additionally subject to dismissal under Section 21-31-27 , in accordance with Section 21-31-23 and the city's civil service rules, upon becoming a candidate for elective office in the municipality.

Question 8: Section 21-9-71 and Section 21-31-27 both apply to political activity by covered employees in elections for office within the municipality where the employee works. The prohibitions on political activity in those two statutes apply whether the political activity occurs when they are off duty or on duty. See MS AG Op., Schissel (February 25, 1993). The prohibitions on political activity in those statutes would not apply to off-duty political activity by covered employees with relation to elections for county, state, and federal office, or for elections in municipalities other than where the employee works.

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely yours,

JIM HOOD, ATTORNEY GENERAL

By: Reese Partridge

Assistant Attorney General