Mississippi Advisory Opinions January 09, 1991: 19910109 (January 09, 1991)

Advisory Opinion Text

John W. Davies, Esquire

Attorney for Town of Prentiss

Post Office Box 1344

Prentiss, Mississippi 39474

Dear Mr. Davies:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

“The Board of Aldermen for the Town has requested an opinion as to a personnel policy it is considering adopting. The proposed policy would require that in the event an employee decides to run for an elective office that he take a leave of absence without pay whenever such person announces his candidacy or qualifies to be a candidate or whenever his position with the Town is adversely affected by his decision to seek public office.”

Mississippi Code Annotated § 21-17-5 (1972) provides in part:

“(1) The governing authorities of every municipality of this state shall have the care, management and control of the municipal affairs and its property and finances, and shall have the power to adopt any orders, resolutions or ordinances with respect to such municipal affairs, property and finances for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi, .....” (emphasis added)

We find no statutory prohibition against a policy which would require an employee to take leave of absence whenever he announces his candidacy or qualifies to be a candidate for public office. We are further of the opinion that an ordinance formulating said policy would be authorized pursuant to “home rule” so long as it is reasonably related to achieving a legitimate governmental purpose. However, before any such ordinance or policy can be lawfully enforced it must be submitted to the U.S. Department of Justice for preclearance pursuant to Section 5 of the Voting Rights Act of 1965. See Dougherty County, Georgia, Board of Education v. John E. White, 439 U.S. 32, 58 L.Ed.2d 269, 99 S.Ct. 368 (1978) .

Sincerely,

Mike Moore, Attorney General.

Phil Carter, Special Assistant Attorney General.