Mississippi Advisory Opinions April 11, 1979: 19790411 (April 11, 1979)

Advisory Opinion Text

Chief Harvey Jones, Chief of Police of

City of Port Gibson

806 Farmer Street

Port Gibson, Mississippi 39150

Re: Municipalities—Elections—Political Activities of Employees

Dear Chief Jones:

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

Your letter states:

‘The City of Port Gibson has been presented with the problem of one of our full time paid police officers, offering himself as a candidate for Sheriff of Claiborne County.

‘In the way of background here is what we are confronted with. Officer Frank Davis is employed by the City of Port Gibson as a Police Patrolman working the 4 p.m.–12 a. m. shift, he is also employed (8 a. m.–4 p. m.) as the County Civil Defence Director, both jobs funded by Federal, county and/or city funds. Mr. Davis insists that he be allowed to continue working as a police officer until the election, he will probably run as in independent candidate.

‘I, as Chief of Police, have told Mr. Davis that I did not think that it would be in the best interest of himself or the Police Department for him to continue working as a patrolman. I also told him that it was my belief that it would be impossible for him to separate his duties from his campaign in that he is required to come in contact with many-many people daily, and that any arrests he would make or not make would be taken to have been done because of the campaign.

‘I asked Mr. Davis to request a leave of absence or submit his resignation in good standing but as I said, he insists that he be allowed to continue working.

‘Mr. Summer, I would like you to clarify the laws in this matter and to determine if there is any conflict of interest involved. Your prompt reply will be greatly appreciated.’

Initially, we are obliged to say that the part of your inquiry relating to the Hatch Act is not susceptible to an opinion of this office since it would require an opinion concerning a federal statute. However, we can state that The Hatch Act (5 U.S.C. 1501 – 1508) is enforced by the United States Civil Service Commission and that the enclosed copy of Summary Statement Regarding Political Activity of State and Local Officers and Employees includes instruction on how to apply to the Commission for assistance in resolving any question as to whether the Act applies.

Mississippi statutory restrictions on political activities of municipal officers and employees are by type or class of municipality. Port Gibson is classed as a Code charter municipality—mayor and board of aldermen. Unlike some other classes of municipalities, there are no statutory restrictions as to Code charter municipalities.

There are, however, in the opinion of this office, restrictions on municipal employees' political activities: In conducting political activities, such employees are prohibited from expending or causing to be expended any public funds; from using public property or public services; and from allowing these activities to interfere with the impartial, prompt, and efficient performance of their duties.

Reference is made to the recent United States Supreme Court case of Dougherty Co., Georgia, Board of Education, et al v. John E. White , 439 U.S. 32. 58 L.Ed.2d 269, 99 S.Ct. 368, decided on November 27, 1978. The Dougherty County case treated the matter of a requirement that an employee of a county board of education was required to take a leave of absence without pay upon becoming a candidate for elective office. This requirement is similar to your proposal of a leave of absence for the police officer.

Dougherty County did npt decide the substantial question of the constitutionality of the employee leave requirement in that case. It did decide that such a requirement imposed after the effective date of Section 5 of the Voting Rights Act of 1965 (‘the Act’) should be submitted for Federal approval before implementation.

We, therefore, are of the opinion that if the City of Port Gibson, or its agencies, are to attempt enforcement of a requirement that an employee take a leave of absence when engaged in running for political office and such requirement was made subsequent to 1965, then the requirement should be submitted to the Office of the Attorney General of the United States for preclearance.

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 is engaged in running for political office without preclearance under Section 5 of the Act if such a policy was adopted subsequent to 1965.

Noting the language in Dougherty County expressing the Court's concern for the possibility of discrimination resulting from constraints on employee political activity, it is recommended that you consider submitting the proposed requirements of your personnel policy for preclearance. We trust this will be of assistance to you.

With kind regards, I am

Very truly yours,

A. F. Summer Attorney General.

S. E. Birdsong, Jr. Special Assistant Attorney General.