Mississippi Advisory Opinions May 09, 1979: 19790509 (May 09, 1979)

Advisory Opinion Text

Honorable Charles J. Swayze, Jr.

Attorney

Leflore County Prosecuting Attorney

Post Office Box 941

Greenwood, Mississippi 38930

Re: Elections—Restraints on County Employees' Candidacy

Dear Mr. Swayze:

Your letter request of May 1, 1979, addressed to Honorable A. F. Summer, Attorney General, has been received and assigned to this writer for research and reply. Your letter states:

‘Several employees of Leflore County have qualified as candidates for elective positions in Leflore County, and several others are contemplating same. Leflore County Board of Supervisors passed a resolution several years ago requiring county employees to resign from their positions or to take a leave of absence during their active campaign. Please advise if your office views this as constitutional.’

There is no State prohibition against a county or city employee's being a candidate for elective public office so long as such does not interfere with the prompt and efficient discharge of his or her duties in carrying out his or her present employment.

We enclose a prior opinion of this office to Honorable Aubrey Nichols, dated May 27, 1977, which we believe is responsive to your request.

Additionally, 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. —, 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 a county employee.

Dougherty County did not 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 apporyal before implementation.

We, therefore, are of the opinion that if the Leflore County Board of Supervisors is to attempt enforcement of a requirement that an employee take a leave of absence when engaged in running for policital 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 county cannot terminate a person's employment by the county 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.

Very truly yours,

A.F. Summer Attorney General.

John M. Weston Special Assistant Attorney General.

May 27, 1977

Honorable Aubrey E. Nichols

Post Office Box 32

Columbus, Mississippi 39701

Re: Elections—Restraints on County Employees' Candidacy

Dear Mr. Nichols:

Attorney General Summer is in receipt of your letter of May 19, 1977 had has assigned it to me for research and reply.

Your letter stated:

‘On March 17, 1975, our Board of Supervisors passed an order providing for the termination of county employees who announce their candidacy for public office in the primaries or general elections. A copy of that order is enclosed with this letter.

On May 19, 1975, the employment of one Clarence E. Berry was terminated pursuant to the prior order of the Board, a copy of the notice to Mr. Berry being enclosed herewith.

Our Supervisors have requested that I secure from you a opinion as to the validity of their order providing for the termination of employment under these circumstances.

Also, we are interested in knowing if such restrictions constitute a violation of a party's constitutional right to exercise his political beliefs.

The enclosed order stated in part:

‘. . .. Any person in the employ of Lowndes County, under the jurisdiction of the Board of Supervisors, who announces for public office in the primaries and general election 1975, will be expected to resign upon making public announcement