Mississippi Advisory Opinions November 06, 1981: AGO 000003362 (November 6, 1981)

AGO 000003362.

Dear Ms. Williams:

Attorney General Bill Allain has received your letter addressed to the Honorable J. Stephen Wright, and has assigned it to me for research and reply.

You pose several questions which are set out below with responses.

Question: "Our town is under the Public Employees Retirement System and the person in question is 72 years old. Your letter refers to mandatory age for 'police officers'. Does this mean this person must work full time (as 'law enforcement officer' is defined) to be covered by this mandatory age retirement rule? Can he be required to retire if he is part time or classified as a 'nightwatchman'?"

Response: The expression "full time" used in Mr. Wright's letter to you was meant to apply to a determination as to what law enforcement officers would fall within the jurisdiction of the Mississippi Board on Law Enforcement Officers Standards and Training Board. Age retirement is not necessarily related to this expression.

Reference is made to Section 25-11-111 of the Mississippi Code of 1972, Annotated (the "Code"), which provides in part:

"... (f) Any member, except members excluded by the Age Discrimination in Employment Act Amendments of 1978 (Public Law 95-256), under either Article 1 or Article 3 in service who shall have attained the age of seventy (70) years shall be retired forthwith. Retirement at the age of seventy (70) years shall be mandatory, except in the case of officials elected by popular vote and those appointed by the governor and confirmed by the senate. No other exception shall be permitted. If a person con- tinues in service beyond the ages specified above and upon proper notification from the board of trustees of the retirement system, the state auditor of public accounts, in cooperation with the state attorney gene- ral, shall institute proper suit to recover the compen- sation paid to such person for return of all such compensation to the fund from which it was paid. No credit for such service or compensation shall be allowed by the board.

The "Article 1 or Article 3" mentioned above constitute articles of Chapter 11 of Title 25 of the Code. Article 1 provides for Social Security coverage for employees of the State and its political subdivisions. Coverage is extended to employees of municipalities that have entered into arrangements with the Board of Trustees of the Public Employees' Retirement System.

Article 3 comprises the provisions of statute law governing the Public Employees' Retirement System, separate and apart from any arrangements for Social Security coverage. Any employee of a political subdivision -- municipalities included -- who is covered under both Articles 1 and 3, or either, is subject to the forced retirement provisions of Section 25-11-111 quoted above.

If a municipality has extended to its employees Social Security coverage under Article 1 cited above, then any employee who attains the age of 70 cannot continue to be employed and no person who has attained 70 can be employed even though paid by the hour.

There is one exception to the above requirement for terminating employment that is applicable to employees who are covered under either Article I or 3. Section 25-11-127 of the Code provides this exception:

"...The provisions of this section shall not be construed to prohibit any retirant regardless of age from being employed and from drawing retirement allow- ance, on an emergency basis, either (a) for a period of time not to exceed sixty (60) days in any fiscal year, or (b) for a period of time in any fiscal year sufficient in length to permit a retirant to earn not in excess of twenty-five percent (25%) of retirant's average compensation or the current rate of the salary in effect for the regular position filled. Notice shall be given in writing to the executive secretary of the system, setting forth the facts upon which the emergency employment is being made, and such notice shall be given within five (5) days from the date of employment and also from the date of termination of said employment. ..."

Therefore, a response to this question depends not upon a person's "classification" but upon whether that person is covered under either Article 1 or 3, or both. Those who are covered are shown in Osyka municipal records.

For additional information you may communicate with: Public Employees Retirement System of Mississippi 1704 Sillers State Office Building Jackson, Mississippi 39201.

Question: "Our city clerk indicates that no one can be removed from our voting rolls if there is the possibility of a person returning back to our town to reside one day. This presents situation when persons (who once resided in town and are on voting rolls) living outside of the city limits are voting in town elections. If there any way to prevent this?"

Response: Once a person is lawfully registered as a municipal elector by the Municipal Registrar -- who is the Municipal Clerk -- that person's name may be removed from the registration book only by the Municipal Election Commission or by order of a Circuit Judge when the matter is properly before that Judge. The municipal governing authorities do not have any authority to order the removal of a person's name from the registration book.

The Municipal Election Commissioners meet from time to time as required by law to, purge the books and this may result in removal from the books of persons names who for lawful reasons have been determined to be disqualified as municipal electors.

The Commissioners may receive information from the Municipal Registrar or other reliable source which may provide a basis upon which to decide whether a registrant's name is to be removed.

The Registrar acts to remove names upon the orders of the Commissioners.

Prior to the last municipal general election conducted in 1981, this office furnished to the office of each municipal clerk two copies of "Guide to Municipal Election, Revised Edition 1981". You may consult a copy at Osyka for additional information on the subject of municipal registration.

Question: "2) Specifically, what are the reasons to be used in the recall of a mayor or alderman and what is the procedure?"

Response: There is no statutory authorization for the recall of mayors and aldermen.

Question: "3) Is a municipality legally required to furnish fire protection services (rather than relying on volunteer services)?

Response: Reference is made to Section 21-25-3 of the Code: " 21-25-3. Establishment and maintenance of fire department.

The governing authorities of municipalities shall have the power to provide for the prevention and extinguishment of fires, to organize, establish, operate, and maintain fire and hook and ladder companies to pro- vide for and maintain a fire department and system, and to regulate the same. The governing authorities shall have the power to allow the fire department to attend and help to extinguish a fire outside the city limits."

Question: "4) As a new alderman, I am confronted with unfamiliar matters of which I would like more understanding. I specifically need a simple course on all there is to know about municipal bonds from simple definitions to more detailed explanations. Is there some agency where this is available?"

Response: It is suggested that you address: Mr. Grover N. Allen, Director State Bond Advisory Division Office of the Governor Suite 204, Watkins Building 510 George Street Jackson, Mississippi 39201.

Question: "5) Are letters written to you, such as this one, public record and therefore subject to review by anyone?"

Response: When you write a letter as a public officer for advice and information, the written reply from this office and your letter become public records.

It is recommended that you consult the Osyka Municipal Attorney concerning the questions in your letter.

With kind regards, I am

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY:

S.E. Birdsong, Jr. Assistant Attorney General

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