Mississippi Advisory Opinions February 18, 2000: AGO 000013641 (February 18, 2000)

AGO 000013641.

Dear Mr. Artigues:

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

Your letter states, in part:

"It is my understanding that candidates for office must continue to file annual disclosure reports in accordance with Miss. Code Ann. Section 23-15-807, until the candidate files his or her termination report. It is further my understanding that Miss. Code Ann. Section 23-15-811 (d) (1972), as amended, provides that [n]o candidate who is elected to office shall receive any salary or other remuneration for the office unless and until he files all reports required by this article due as of the date such salary or remuneration is payable.' I have been advised that a current elected official, who took office on December 2, 1998, timely filed his pre-primary election report and his pre-general election report, but has not filed any additional reports since November 24, 1998. More specifically, I have been informed that as of the date of this letter, this elected official has not filed a termination report or any annual reports for the January 31, 1999, or January 31, 2000, reporting periods.

While the provisions of Miss. Code Ann. Section 23-15-811 (d) (1972), as amended, appear to prohibit the elected official from collecting a salary until the filing requirements are satisfied, a question has developed as to the proper interpretation of the curing' provisions set forth in subparagraph (e) of that same code section. Miss. Code Ann. Section 23-15-811 (e) states that [i]n the event that a candidate fails to timely file any report required pursuant to this article but subsequently files a report or reports containing all of the information required to be reported by him as of the date on which the sanctions of paragraphs (c) and (d) of this section would be applied to him, such candidate shall not be subject to the sanctions of said paragraphs (c) and (d)."

You then pose four questions which we will respond to separately.

We preface our responses by stating that this opinion is prospective in nature. We offer no opinion or comment regarding any action already taken by the governing authorities of the City of Waveland.

1. What is the "...date on which the sanctions of paragraphs (c) and (d) of this section would be applied to him?" Does this date constitute the due date of the filing of the annual reports required in the absence of the filing of a termination report, or does it mean the date in which the appropriate authorities seek to impose these penalties upon the elected candidate?

It is the opinion of this office that the prescribed sanctions of Section 23-15-811(c) & (d) are applicable once the deadline passes and the candidate has not filed the required report.

2. Does the City of Waveland and/or the Board of Aldermen have a duty to suspend payment of the elected official's salary until such time as he files all required disclosure reports?

The obvious purpose of Section 23-15-811(c) & (d) is to force successful candidates for elective office to file delinquent reports by withholding compensation. The City of Waveland by and through the Board of Aldermen, in our opinion, has an affirmative duty to comply with Section 23-15-811(d) by withholding the payment of any salary or other remuneration until the offending official files all delinquent reports required by Section 23-15-807.

3. Does the City of Waveland and/or the Board of Aldermen have a duty to recover or recoup all salary payments made to the elected official subsequent to the initial deadline for filing the disclosure reports that were not timely filed?

While we have said that the municipal governing authorities have a duty to withhold compensation to force successful candidates to file their reports, we find nothing in the campaign finance disclosure laws that requires said governing authorities to seek recovery of compensation paid to an official who, at the time of the payment, was delinquent in filing one or more reports.

4. In the event that the elected official ultimately files the required disclosure statements, is he entitled to retain all salary payments received prior to the date of his ultimate filing?

As stated in your letter, Section 23-15-811 (e) provides in part that a candidate who is delinquent "but subsequently files a report or reports containing all of the information required to be reported by him as of the date on which the sanctions of paragraphs (c) and (d) of this section would be applied to him, such candidate shall not be subject to the sanctions of said paragraphs (c) and (d)."

We are constrained by the above quoted statutory provision to say that a candidate who ultimately files all required reports is entitled to retain any compensation paid while said candidate was delinquent in filing reports. Likewise, we are constrained to say that a candidate who ultimately files all delinquent reports would be entitled to any compensation withheld pursuant to Section 23-15-811(d).

Sincerely,

MIKE MOORE

ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General