Mississippi Advisory Opinions June 21, 1989: 19890621 (June 21, 1989)

Advisory Opinion Text

Eugene D. Brown, Jr., Esq.

City Attorney for Holly Springs

P. O. Drawer 9

Holly Springs, MS 38635

Dear Mr. Brown:

Your request for an official opinion has been received by this office and has been assigned to me for research and response. The major provisions of your letter are as follows:

I am requesting your opinion as to the operation of the provisions of Miss. Code Ann. Section 25–11–127 (Supp. 1988) regarding the above-referenced matter, on behalf of the City of Holly Springs, for which I am an attorney, and also on behalf of the Holly Springs Democratic Executive Committee, of which I am chairman.

W.W. Newsom was re-elected as City Clerk and took office July, 1985. On or about June 6, 1986, Mr. Newsom elected to execute a waiver of salary and receive retirement benefits in lieu of salary, effective July 1, 1986. A waiver of salary (MPERS form 9(D)) has been executed by him each year thereafter. Mr. Newsom has continued to perform the duties of his office as City Clerk on a full time basis, qualified as a candidate for re-election in the manner prescribed by law, and received a majority of the votes cast at the first primary election. He was certified as the party nominee by the Executive Committee and, inasmuch as there were no Republican or independent candidates who qualified, his new term of office as City Clerk will commence July, 1989.

The candidate whom he defeated in the first primary has questioned the propriety of his conduct in waiving his salary and drawing retirement benefits while still occupying the position of City Clerk, and has also questioned the propriety of his qualifying for re-election and subsequent certification as the party nominee.

I would appreciate your addressing the following specific questions:

1. Was Mr. Newsom entitled to execute a waiver of salary, receive in lieu thereof a retirement allowance, and continue to occupy and fulfill the duties of the office of City Clerk;

2. Does the fact that Mr. Newsom waives his salary and receives retirement allowance in lieu thereof prevent him from qualifying as a candidate for re-election and subsequently being re-elected;

3. Assuming arguendo that Mr. Newsom violated any of the provisions of the aforementioned statute, would the consequence of such violation constitute an abandonment of his office, thereby requiring him to vacate that office;

4. Assuming arguendo that Mr. Newsom violated any of the provisions of the aforementioned statute, would the consequence of such violation prevent him from qualifying as a candidate for election to that office?

As the position in question is that of a municipal officer, Mr. Newsom was entitled to execute a waiver of salary, receive a retirement allowance in lieu of salary, and continue to occupy and fulfill the duties of the office of City Clerk. His receiving a retirement allowance in lieu of his salary does not prevent him from qualifying as a candidate for re-election and subsequently being re-elected.

Very truly yours,

Mike Moore Attorney General.