Mississippi Advisory Opinions June 27, 1990: AGO 000010458 (June 27, 1990)

AGO 000010458.

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

By: Larry J. Stroud Special Assistant Attorney General

LJS:mfd