Mississippi Advisory Opinions January 29, 1979: 19790129 (January 29, 1979)

Advisory Opinion Text

Honorable Stephen W. Rimmer

Young, Scanlon and Sessums

Attorneys and Counselors at Law

1440 Deposit Guaranty Plaza

Jackson, Mississippi 39201

Municipalities — Elections — Political Activities of Employees

Dear Mr. Rimmer:

Attorney General A. F. Summer has received your letter and has assigned it to me for research and reply.

Your letter states:

“As attorney for the Town of Madison, Mississippi, I am requesting that your office provide me with an opinion pertaining to the right of the municipality to prohibit municipal employees from continuing in their municipal employment after they have qualified as a candidate for nomination for election to a public office. Enclosed herewith is a copy of a portion of the 'Personnel Policies and Procedures' of the Town of Madison. I would direct your attention to Rule X(3) and (6) which pertains to prohibited activities by municipal employees.

“In Dougherty Co., Georgia, Board of Education, et al. v. John E. White, __ U.S. __. 58 L.Ed.2d 269, 99 S.Ct. __, the United States Supreme Court considered the question of the applicability of a similar requirement. This decision indicates that a restriction such as the one contained in our personnel policy is a 'standard, practice or procedure with respect to voting' and was subject to the Federal preclearance requirements of Section 5 of the Voting Rights Act.

“I would appreciate your advising me of whether or not in your opinion the Town has the right to enforce the subject provisions of its personnel policy.”

You enclosed a copy of part of the “Personnel Policies and Procedures” which provides in pertinent part:

RULE X - CONDUCT OF EMPLOYEES

1. Hours of Work - The hours of work shall be determined by the Mayor and Board of Aldermen. When an employee's normal schedule of work is changed, notice of such change shall be given to the employee at least three days prior to the effective date thereof, if possible.

Most Town employees work up to a forty hour week of five eight-hour days. City Hall offices are open from 8:00 A. M. until 4:30 P. M., with an hour for lunch. Starting and quitting time in some departments vary depending on the service they provide....

3. Political Activity - A Town employee may express his opinion privately as a citizen and may vote in any election for which he is qualified. In fact, all employees are urged to use their right as citizens. However, no town employee may take active part in any political purpose, nor engage in active campaigning to hold partisan public office. ....

6. Prohibitions - ....

No employee shall seek or attempt to use any political endorsement in connection with or preferment or advantage in a position in the Town service, nor shall be actively engaged in supporting candidates for public office during normal working hours.

No officer or employee shall continue in such position after being qualified as a candidate for nomination or election to any public office.

Violation of any of the above provisions shall be grounds for dismissal, or rejection of an application.”

Dougherty County, decided November 27, 1978, was a matter before the Court wherein the Appellee, a Negro, was employed by a county board of Education as Assistant Coordinator of Student Personnel Services. When he announced his candidacy for the State of Georgia Legislature, the board adopted “Rule 58” which stated:

“POLITICAL OFFICE. Any employee of the school system who becomes a candidate for any elective political office, will be required to take a leave of absence, without pay, such leave becoming effective upon the qualifying for each elective office and continuing for the duration of such political activity, and during the period of service in such office, if elected thereto.”

He was compelled by the rule to take a leave of absence without pay. Defeated in a primary, he was reinstated. Two years later, he again qualified and was forced to take leave. A third time, after election to office, he took leave to run for reelection. He filed an action in a Federal District Court alleging that Rule 58 was a “standard practice or procedure with respect to voting” adopted by an entity covered by Section 5 of the Voting Rights Act of 1965, and, therefore, subject to the preclearance requirements of Section 5 of the Act. The District Court held that Rule 58 should have been submitted for Federal approval before implementation and enjoined enforcement of the rule pending clearance.

Before addressing your inquiry, we note that Madison does not have a commission form of government and does not have a statutory civil service system. Therefore, restrictions on political activity of officers and employees of a commission form of government stated in Section 21-5-21 of the Mississippi Code of 1972, Annotated, have no application here; nor do such restrictions stated in Section 21-31-75 of the Code applicable to civil service employees have any application.

It is noted that Dougherty County did not decide the substantive question of Rule 58's legitimacy apart from the effect of Section 5 of the Act but did comment on the general principle of constraints on employee political activity:

“...Rule 58 is not a neutral personnel practice governing all forms of absenteeism. Rather, it specifically addresses the electoral process, singling out candidacy for elective office as a disabling activity. Although not in form a filing fee, the Rule operates in precisely the same fashion. By imposing substantial economic disincentives on employees who wish to seek elective office, the Rule burdens entry into elective campaigns and, concomitantly, limits the choices available to Dougherty County voters. Given the potential loss of thousands of dollars by employees subject to Rule 58, the Board's policy could operate as a more substantial inhibition on entry into the elective process than many of the filing fee changes involving only hundreds of dollars to which the Attorney General has successfully interposed objections....

....Moreover, as a practical matter, Rule 58 implicates the political process to the same extent as do other modifications that this Court and Congress have recognized § 5 to encompass, such as changes in the location of polling places, Perkins v. Matthews, supra , and alterations in the procedures for casting a write-in vote, Allen v. State Board of Elections, supra.

(7) We do not, of course, suggest that all constraints on employee political activity affecting voter choice violate § 5. Presumably, most regulation of political involvement by public employees would not be found to have invidious purpose or effect. Yet the same could be said of almost all changes subject to § 5. According to the most recent figures available, the Voting Rights Section of the Civil Rights Division processes annually some 1, 800 submissions involving over 3, 100 changes and interposes objections to less than 2%. Attorney General Ann. Rep. 159-160 (1977). Approximately 91% of these submissions receive clearance without further exchange of correspondence, Tr. of Oral Arg. 53. Thus, in determining if an enactment triggers § 5 scrutiny, the question is not whether the provision is in fact innocuous and likely to be approved, but whether it has potential for discrimination....

Without intimating any views on the substantive question of Rule 58's legitimacy as a nonracial personnel measure, we believe that the circumstances surrounding its adoption and its effect on the political process are sufficiently suggestive of the potential for discrimination to demonstrate the need for preclearance. .... That the Board made its mandatory leave of absence requirement contingent on candidacy rather than on absence during working hours underscores the Rule's potential for inhibiting participation in the electoral process....”

(Pages 279 and 278; Emphasis Supplied)

In passing, it is also noted that the Supreme Court rejected the Board's contention that Section 5 was not applicable to itself as a particular kind of entity:

“(3b) Section 5 applies to all changes affecting voting by 'political subdivision(s)' of States designated for coverage pursuant to § 4 of the Act. Although acknowledging that the Board is a political subdivision under state law, appellants contend that it does not meet the definition of that term as employed in the Voting Rights Act. They rely on § 14(c)(2) of the Act, 79 Stat. 445, 42 USC § 19731(c)(2) (42 USCS § 19731(c)(2), which defines 'political subdivision' as:

'any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.'

Because the Board is neither a county, parish, nor entity which conducts voter registration, appellants maintain that it does not come within the purview of § 5.

(lla) This contention is squarely foreclosed by our decision last term in United States v. Board of Commissioners of Sheffield, Alabama, 435 U.S. 110, 55 L.Ed.2d. 148, 98 S.Ct. 965 (1978) . There, we expressly rejected the suggestion that the city of Sheffield was beyond the ambit of § 5 because it did not itself register voters and hence was not a political subdivision as the term is defined in § 14(c)(2) of the Act. Rather, the 'language, structure, history, and purposes of the Act persuade(d) us that § 5, like the constitutional provisions it is designed to implement, applies to all entities having power over any aspect of the electoral process within designated jurisdictions....' 435 US, at 118, 55 L.Ed.2d 148, 98 S.Ct. 965. Accordingly, we held that once a State has been designated for coverage, § 14(c)(2)'s definition of political subdivision has no 'operative significance in determiming the reach of § 5.' Id., 126, 55 L.Ed.2d 148, 98 S.Ct. 965.... ” (Page 281)

Dougherty County is read by us to state unequivocally that a municipality cannot by rule made subsequent to the effective date of the Voting Rights Act of 1965 compel an employee to take leave without pay when the employee becomes a candidate for any elective political office without first obtaining a preclearance under Section 5 of the Act.

Accordingly, we think it would follow that a municipality cannot terminate a person's employment by the municipality for the sole reason that such person “...take(s) an active part in any political purpose, (or) engage(s) in active campaigning to hold partisan public office....” without preclearance under Section 5 of the Act.

Incidentally, we note Chatham v. Johnson , 195 So.2d 62 (Miss.) decided in 1967. In this case the Mississippi Supreme Court held that by regulation passed in 1959 and amended in 1963 a county board of education had the power to require an elementary school principal to take leave of absence without pay while he was campaigning for the office of county superintendent of education and if he performed any duties during such period, he did so as a volunteer and was not entitled to pay as a matter of right. Presumably, under Dougherty County such a requirement made by any political entity subsequent to the decision in that case would be subject to preclearance.

There remains the matter of the “substantive question of .... legitimacy” of the Madison rule prohibiting certain described political activity conjoined with the penalty of forfeiture of employment upon qualification as a candidate for nomination or election to any public office; and also the legitimacy of the rule that certain other employees' political activity constitutes grounds for dismissal or rejection of an employment application.

We are obliged to state that since the rules under consideration are the result of actions previously taken by the governing authorities that the matter is not susceptible to an opinion of this office. Any such opinion could not validate nor invalidate the rules. It would be a matter for determination by a court of competent jurisdiction.

We can relate that this office has previously stated the opinion that a mayor or alderman of a Code charter municipality — Madison is classed as Code charter — is not required under Mississippi law to resign office when running for another elective office. We have also stated the opinion thatunder Mississippi law there is no requirement that a Code charter municipality employee must resign from employment to run for any elective office; provided, however, that the employee's political activities must not interfere with required attendance on his duties nor the efficient discharge of those duties.

Attached for reference is a copy of an office memorandum summarizing Hobbs v. Thompson , U.S. Court of Appeals, 5th Circuit, 448 F. Reg. 2d, 456 (1971) which may be useful in considering the legitimacy of Madison's rules concerning political activity of municipal employees. Under the rationale of Hobbs , by coincidence a case also arising in Georgia, a sweeping prohibition against all political activity by municipal employees — the Hatch Act of 1939 aside — would appear to be unconstitutional.

In passing, we also note that the court in Dougherty County incidentally addressed the matter of what could be done to regulate to some extent the political activity of municipal employees. In a footnote to Page 280 the court remarked on the dissent's position that Rule 58 was directed only toward barring the expenditure of public funds to support the candidacy of employee who should be doing his job:

“....Insofar as the Board is concerned about its employees' failure to discharge their contractual obligations while standing for office, it has a variety of means to vindicate its interest. The Board may, for example, prescribe regulations governing absenteeism, or may terminate or suspend the contracts of employees who willfully neglect their professional responsibilities.... What it may not do is adopt a rule that explicitly and directly burdens the electoral process without preclearance.”

Our previously expressed opinion that a municipal employee's political activity cannot interfere with efficient job performance is consonant with the court's observation in the footnote.

We trust this will be of assistance to you.

With kind regards, I am

Very truly yours,

A. F. Summer Attorney General.