Mississippi Advisory Opinions March 06, 1998: AGO 98-0114 (March 06, 1998)

Advisory Opinion Text

Mark D. Ray, Esquire

General Counsel

Mississippi Employment Security Commission

Post Office Box 1699

Jackson, Mississippi 39215-1699

Re: State employees taking personal leave to campaign

Dear Mr. Ray:

Attorney General Mike Moore has received your request for an official opinion and has assigned it to me for research and reply. In your letter you state in pertinent part:

We have recently been confronted with a situation in which a state employee requested to be allowed personal leave for purposes of assisting a candidate in an election campaign. Specifically, the employee wanted to use the time to stand near a polling place and hold a placard advocating the candidate of his choice.

Please opine whether Miss. Code Ann. Section 23-15-871 (1972, as amended 1987) requires the Agency to disallow the taking of personal leave for such purposes. I am aware of your Opinion to Vickery dated February 8, 1995, and your Opinion to Cofer dated April 18, 1983, which state that Miss. Code Ann. Section 23-3-29 (1972, repealed 1986) did not prohibit campaigning for a candidate or even running for office. However, the crux of these Opinions seemed to be that Section 23-3-29 was enacted before and not in contemplation of Section 25-3-93, the latter of which created earned vacation time for public employees. Since Section 23-15-871 was enacted after the vacation leave statute (Section 25-3-93), does Section 23-15-871 prohibit the activities described in the first paragraph on personal leave?

If Section 23-15-871 does prohibit campaign activities by state employees while on personal leave, how are agencies to enforce this prohibition? In many instances, Agency administration would only become aware of campaign activities during personal leave after the fact.

In response to your question, Section 23-3-29 was repealed and recodified almost verbatim as Section 23-15-871, Miss. Code Ann . It continues to be the opinion of this Office that there is no statutory prohibition against a state employee taking personal leave to campaign on behalf of a candidate. MS AG Op., Vickery (February 8, 1995), attached.

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

Very truly yours,

Mike Moore, Attorney General.

Sandra Murphy Shelson Special Assistant Attorney General.