Mississippi Advisory Opinions August 02, 1990: 19900802 (August 02, 1990)

Advisory Opinion Text

Honorable Ronald A. Peterson

Sheriff

Hancock County

P.O. Box 262

Bay St. Louis, MS 39520

Re: Hancock Sheriff Civil Service

Dear Sheriff Peterson:

Attorney General Mike Moore has received your letter and has assigned it to me for reply. In your letter you state:

I would like your opinion concerning rules on the recent Civil Service implementation into the Hancock County Sheriff's Department.

If the Budget for the Hancock County Civil Service should be included into the Sheriff's Budget or should it be a separate budget and be allocated by the Hancock County Board of Supervisors out of the General Fund.

Also in House Bill Number 133 it states that no employee may be allowed to participate in any political activity. The question is, can an employee run and hold a political office under this rule. If so, do they have to resign or take a leave of absence from employment.

House Bill 133 you refer to is Chapter 802, Private and Local Laws of 1990. Section 5 of that act requires the Board of Supervisors to “provide the commission with suitable and convenient rooms and accommodations, and shall cause the same to be furnished, heated and lighted and supplied with all office supplies and equipment necessary to carry on the business of the commission, and shall provide such clerical assistance as may be necessary....” It is our opinion that the legislature intended that the civil service commission for the Hancock County Sheriff's Department be a separate independent county agency funded by the board of supervisors and not a part of the sheriff's department or budget.

Your second question concerned the provision forbidding political activity. A similar provision was interpreted in an opinion of this office to Sheriff D.B. “Pete” Pope, dated June 27, 1990, a copy of which is enclosed. In that opinion we said that such a provision makes it cause for termination for an employee to participate in any political activity in any primary or election in that county. There are no exceptions from the ban on political activity for employees who actively participate in political activity while on leave or on vacation.

Very truly yours,

Mike Moore, Attorney General.

June 27, 1990

Honorable D.B. “Pete” Pope

Sheriff, Jackson County

P.O. Box 998

Pascagoula, MS 39568-0998

Re: Political Activity/Jackson County Civil Service Act for Sheriff's Department

Dear Sheriff Pope:

Attorney General Mike Moore has received your letter and has assigned it to me for reply. In your letter you state:

This is to request an Official Opinion from your office regarding House Bill No. 1536, which provides for Civil Service for the Jackson County Sheriff's Department.

Please advise whether, according to Lines 219-223, this bill can legally prohibit political activity of off-duty personnel. I would appreciate, specifically, if, in rendering your opinion, you would address whether an employee may run for an elected office himself, if an employee may help the sheriff in his campaign, and, if the First Amendment rights are involved in anyway.

The pertinent language of House Bill 1536, which has been enrolled as Chapter 814, Local and Private Laws of 1990, is:

If any person holding any office, place, position or employment in the sheriff's department which is subject to civil service actively participates in political activity in any primary or election in Jackson County, it shall be deemed cause for removal.

The language is clear and unambiguous. If a person whose office, place, position or employment is subject to the civil service provisions of Chapter 814 actively participates in political activity in any primary or election in Jackson County, then that person has done a act that justifies removal under the provisions of Chapter 814. There is no exception stated for campaigns in which the employee is also the candidate and we must conclude the legislature did not exclude situations where the employee is the candidate. We note under section 5 of the act, the sheriff and the chief deputy are excluded from the scope of the civil service provisions.

You also ask if a deputy, who is subject to the civil service provisions of Chapter 814, may help the sheriff in his campaign. The prohibition of Chapter 814 would apply to a deputy participating in political activity in a campaign, primary or election, for the office of Sheriff of Jackson County.

Last, you inquire an employee's First Amendment rights are violated by the language in question. We refrain from attacking the presumption of constitutional validity enjoyed by acts of the legislature; however, we refer you to U.S. Civil Service Commission v. National Association of Letter Carriers 413 U.S. 548, 37 L.Ed.2d 796, 93 S.Ct. 2880 (1973) in which the United States Supreme Court held that the federal Hatch Act, 5 U.S.C.A. 7324, which contains similar prohibitions, did not violate the first amendment rights of federal employees.

Very truly yours,

MIKE MOORE ATTORNEY GENERAL.