Mississippi Advisory Opinions May 02, 1991: AGO 000004387 (May 2, 1991)

AGO 000004387.

Dear Commissioner Dixon:

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

"I am writing to request an official opinion concerning Section 45-3-11, Miss. Code Ann. (1972 as amended) which concerns prohibitions for Highway Patrol Officers with regard to political activity. That section states:

45-3-11. Prohibitions as to engaging in political activity and soliciting campaign contributions.

No member of the patrol shall, while in such position, be a candidate for any political office or take part in or contribute any money or other things of value, directly or indirectly, to any political campaign or to any candidate for public office. Anyone violating this provision shall be guilty of a misdemeanor, and upon final conviction shall be punished as provided by law, and shall be dismissed from the patrol.

It shall be unlawful for any person to solicit or attempt to solicit any money or thing of value from any employee of the Mississippi Highway Safety Patrol for political purposes. Any person violating this provision shall be guilty of a misdemeanor and upon final conviction shall be punished as provided by law.

My question concerns the words "No member of the patrol shall, while in such position, be a candidate for political office." Given that language, is it possible for an officer of the patrol to take a leave of absence, without pay, and run for office? I do not know of any other state agency that prohibits its employees from running for political office as is prohibited in this section for the patrol.

In 1954, Colonel T.B. Birdsong received a letter from the Attorney General which indicated that Patrol officers 'should resign' but did not indicate whether the option of a leave, without pay, would change the requirement. I attach a copy of that letter for your review.

I am mindful of the problems that could occur if a patrolman ran for office, particularly for sheriff, and lost and yet returned to work in that same county. However, if there is authority for an officer to run for office while on a leave of absence, without pay, the Patrol can avoid any potential problems by changing the officer's future assignments through general and special departmental orders.

Because the election season is upon us, I would appreciate your opinion as soon as possible. If you have any questions, please do not hesitate to call upon me."

For your information we are enclosing a copy of an opinion addressed to Ms. Bonnie Sides, dated March 6, 1991 which deals generally with the question of whether State employees must resign in order to seek elective office. Similar prohibitions to those set out for members of the Highway Patrol in Section 45-3- 11 are also in effect for employees of other State agencies e.g. Welfare Department (Section 43-1-13), Mississippi Commission on Wildlife Conservation (Section 49-1-19) and Public Service Commission (Section 77-1-25).

Also, please see the enclosed copy of our opinion to Mr. Oscar Jordan, dated January 19, 1989. That opinion deals with the question of municipal civil service employees running for municipal elective office. In Jordan we opined, inter alia, that it was not the legislative purpose to allow such employees to claim exemption from the statutory limitations on political activities by taking a leave of absence without pay. We think the same rationale would apply to the situation described in your letter.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Special Assistant Attorney General

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