Mississippi Advisory Opinions November 01, 1996: AGO 96-0760 (November 01, 1996)

Advisory Opinion Text

Dr. Robert L. Robinson

Executive Director

Mississippi Department of Transportation

P.O. Box 1850

Jackson, Mississippi 39215-1850

Re: State employee running for municipal regular election

Dear Dr. Robinson:

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:

In October of 1995, an employee of the Mississippi Department of Transportation asked whether he could run for councilman for the city of Gautier to fill an unexpired term. He was advised by your office that he could and, further, by the Ethics Commission that this would not constitute a conflict of interest. The employee was successful in his bid for the council seat.

The next regular election for this city council term will be held in the summer of 1997. The same employee, asking whether he may run again in the regular election, explains as follows:

I have reviewed the “Hatch Act, ” 5 U.S.C.A. 7321, et seq., and it appears that I am not included within its definition of employee. If there are not internal D.O.T. policies or regulations preventing this activity, I should be allowed to participate as a candidate for City Councilman in the City of Gautier.

I note for your information that there are no “D.O.T. specific” policies or regulations preventing this activity. My request for a written opinion is as follows: May an employee of the Department of Transportation participate as a candidate for the office of city councilman?

Pursuant to Miss. Code Ann. §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.

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., 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. In the situation you describe, the employee originally ran in a special election to fill an unexpired term. Special elections are normally non-partisan elections and therefore would not be prohibited under The Hatch Act. If the City of Gautier conducts partisan primaries preliminary to the general election, their 1997 municipal election would be partisan pursuant to The Hatch Act.

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

Sandra M. Shelson, Special Assistant Attorney General