Mississippi Advisory Opinions August 30, 1989: 19890830 (August 30, 1989)

Advisory Opinion Text

Honorable A. J. (Buddy) Dees, Jr.

Attorney at Law

Post Office Drawer 1099

Vicksburg, Mississippi 39181

Dear Mr. Dees:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research. A copy of your letter is attached hereto and incorporated herein by reference. We understand that your question stated is, “Whether or not the Chief of Police for the City of Vicksburg is subject to the state or municipal Civil Service statute or ordinance.” You specific questions are:

1. Is L.D. entitled to the protection of the Mississippi Civil Service law?

2. If L.D. as Police Chief is entitled to the protection of the Mississippi Civil Service law, do the Mayor and Aldermen, under the City Charter, still have the right to appoint a different Police Chief?

3. If they do have that right, do they have the authority to lower the salary of L.D. since he is no longer serving as Police Chief in the event he chooses to continue working as a member of the Vicksburg Police Department?

4. Can the City legally and validly terminate L.D. as Police Chief and as an employee of the City without having to comply with the civil service laws and regulations?

Article II, Section 20, of the Special Charter of the City of Vicksburg provides:

“Enumeration of officers, salaries.

(a) Enumeration. The corporate officers of the city shall consist of two (2) aldermen, each of whom shall be elected as provided in Section 5 and Section 37.1, one (1) mayor, one (1) city clerk, one (1) assessor and collector of taxes, one (1) chief of the police department, one (1) city attorney, one (1) chief of the fire department. The mayor and aldermen shall be elected by the qualified voters of the city and shall hold their offices for four (4) years and until their successors are elected and qualified. The city clerk, assessor and collector of taxes, chief of the police department, city attorney and chief of the fire department shall be elected by ballot by the mayor and aldermen, and shall hold their offices for four (4) years unless removed. At their meeting on the first Tuesday in July succeeding the general election, or as soon thereafter as practical, the mayor and aldermen shall choose by ballot incumbents for the offices hereby made elected by them, ...”

The position of Chief of the Police Department is made in office with a fixed term of four (4) years. Such office to be filled by ballot of the Mayor and Aldermen on the first Tuesday in July succeeding the General Election.

When a public office is filled by election by popular vote or by election in some other manner provided by law for a specified term, the right to the office ceases with the expiration of the term except when provided by law the incumbent holdover until his successor is elected and qualified. See Ott v. Lowery , 78 Miss. 487.

The Mississippi Supreme Court has held that a public officer has no claim to an office after his term of office has ended and his successor has been duly elected and qualified. Lowery, supra.

The Special Charter clearly makes the position of Chief of the Police Department of the City of Vicksburg an office.

It is the opinion of this office that the Civil Service Statutes of the state or Civil Service Ordinances of a municipality do not apply to an elective office. Generally, acts do not ordinarily repeal provisions of municipal charters unless the repeal is in expressed language or by necessary implication. Mayor and Board of Aldermen of City of Vicksburg v. Streckius Steamers, 167 Miss. 856. The federal courts have held that the question whether a person is a municipal officer is not affected by the manner of his election or appointment. Barnes v. District of Columbia , 91 U.S. 540, 23 L.Ed. 440, Denver v. Spencer , 34 Col. 270, 82 P. 590.

It is therefore the further opinion of this office that the office of Chief of the Police Department of the City of Vicksburg is not subject to the State Civil Service Statutes Municipal Civil Service Ordinances. The special charter provision specifically provides that on the first Tuesday in July succeeding the General Election the Mayor and Aldermen shall, by ballot, elect a Police Chief for a term of four (4) years. The Mayor and Board of Aldermen may elect the qualified person of their choice to fill such office including the predecessor in office. However, the predecessor has no greater claim or right to election than any other candidate for such office.

It is the further opinion of this office that when the term of office ends and a successor is elected and qualified, that the predecessor ceases to be a city employee unless within the discretion of the Mayor and Aldermen he is again employed.

Very truly yours,

Mike Moore Attorney General

Samuel W. Keyes, Jr. Assistant Attorney General

ATTACHMENT

July 13, 1989

Hon. Mike Moore

Attorney General

P. O. Box

Jackson, Mississippi 39205

ATTENTION: Hon. P. L. Douglas

Dear Mr. Douglas:

We represent the Mayor and Aldermen of the City of Vicksburg, and they have requested we seek your written opinion regarding the matters set forth in this letter. The facts that I have previously conveyed to you by telephone are as follows:

1. In July 1985 the Mayor and Aldermen appointed A. J. H. as Police Chief. By City Charter, the Police Chief is a city officer appointed for a four year term by each new administration. See enclosed copy of applicable City Charter provisions.

2. In 1985, a Policeman referred to as L. D. retired from the Vicksburg Police Department and commenced drawing his pension from the Policemen and Firemen Pension Fund.

3. In 1986 - approximately a year and a half after his retirement, L. D. was hired by the City of Vicksburg to oversee its grass cutting operations (which is not a civil service position).

4. In the spring of 1987 A. J. H. resigned as Police Chief in the midst of his four year term and the Mayor and Aldermen appointed L. D. as Police Chief. At the time of L. D's appointment, no specific provisions are mentioned concerning the length of time he is to serve.

5. After L. D.'s retirement from the Police Department, he did not apply to the Vicksburg Civil Service Board to be placed upon the appropriate re-employment list. At the time L. D. was appointed to serve as Police Chief, he was not on any list maintained by the Civil Service Board of eligible employees. Rule 3.3 of the Rules of the Vicksburg Civil Service Board provide that any such reinstatement shall be applied for within one year after the time of resignation from service. A copy of those rules is enclosed for your information.

6. On July 3, l989 - the newly elected Mayor and Aldermen are sworn in for new four year terms. They appointed J. B. as the new Police Chief in place of L.D.

7. The City of Vicksburg, Mississippi operates under a special charter. The charter provides that the Chief of the Police Department shall be elected by ballot by the Mayor and Aldermen, and that the Chief shall hold his office for four years unless removed. The terms of the Mayor and Aldermen are likewise for the same period of four years. (See enclosed copy of charter provisions)

8. The City of Vicksburg is a municipality defined in 21-31-1(2) (b) and is therefore subject to the Civil Service law set forth in Sections 21-31-1 through 21-31-27 of the Mississippi Code of 1972 as amended. Section 21-31-13 of the Civil Service law includes “all full paid employees of the fire and/or police departments of each municipality coming within its purview, including the chiefs of those departments.” The rules promulgated by the Vicksburg Civil Service Board appear to track the language of the statute in that Rule 1.4 defines “classified service” to include full paid employees of the Fire and/or Police Departments including the Chiefs thereof. These provisions appear contrary to the clear provision in Vicksburg's City Charter concerning the election of the Police Chief by the Mayor and Aldermen to hold his office for four (4) years “unless removed”. The Police Chief by Charter is a city officer elected by the Mayor and Aldermen to that position.

A question has arisen as to whether or not the Police Chief is a civil service employee and entitled to the protection afforded by the civil service law. Can the Police Chief be removed without regard to the provisions of the civil service

Specifically, the City of Vicksburg's question is whether or not the City can terminate L. D. under these facts and circumstances because his term of office has expired and can the termination of L.D. be without application of the civil service laws and rules.

It appears that:

1. The City's special Charter providing for the appointment of the Police Chief as a city officer for a specific term controls over the general statutory provisions of Section 21-31-13 so that the Police Chief is not a member of the class of employees entitled to Civil Service protection.

2. The Mayor and Aldermen cannot bind the successors in office by appointing a Police Chief whose term would extend beyond the term of the appointing authority.

3. This is especially true where the power of removing the Police Chief is likewise granted to the Mayor and Aldermen in the City Charter.

4. Additionally, in this particular case, when L.D. was appointed Police Chief, he had not applied to be reinstated on the Civil Service list and was not hired from the Civil Service list.

5. The Police Chief is a city officer elected by the Mayor and Aldermen and is not a civil service employee.

We would appreciate your answering the following questions:

1. Is L.D. entitled to the protection of the Mississippi Civil Service law?

2. If L.D. as Police Chief is entitled to the protection of the Mississippi Civil Service law, do the Mayor and Aldermen, under the City Charter, still have the right to appoint a different Police Chief?

3. If they do have that right, do they have the authority to lower the salary of L.D. since he is no longer serving as Police Chief in the event he chooses to continue working as a member of the Vicksburg Police Department?

4. Can the City legally and validly terminate L.D. as Police Chief and as an employee of the City without having to comply with the civil service laws and regulations?

Your attention to this matter will be greatly appreciated.

Yours very truly, ELLIS, BOST & ROBINSON, LTD.

A. J. (Buddy) Dees, Jr.