MS 2020-07-D-Lazarus-June-5-2020-Civil-Service-Commission 2020-06-05

Can a Mississippi special-charter city remove civil-service protection from its police chief?

Short answer: No. The AG concluded that even though McComb operates under a special charter, the Mississippi legislature made the civil service system in §§ 21-31-1 to 21-31-27 specifically applicable to McComb via § 21-31-1(2)(g). Section 21-31-13 requires civil service coverage for 'all full paid employees of the fire and/or police departments, including the chiefs.' McComb could not remove that protection from a full-paid police chief.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

The City of McComb operates under a special charter rather than the standard general-law municipal framework. Special-charter cities in Mississippi often have older, more idiosyncratic governance structures, and a question that recurs is whether general state laws override the special charter when the two collide. Chairman Lazarus of McComb's Civil Service Commission asked the AG whether the state civil service system, codified in Miss. Code Ann. §§ 21-31-1 et seq., overrode the McComb Special Charter's Section 6 with respect to the police chief.

The AG said yes. Section 21-31-1(2)(g) describes a particular kind of municipality (more than 10,000 population per the 1970 federal census; Class 1 county; intersection of U.S. 51 and U.S. 98; bounded on the south by Louisiana). That set of geographic and demographic markers points at McComb and only McComb. By writing the statute to apply specifically to that municipality, the legislature amended the McComb Special Charter to put McComb's full-paid police and fire department employees, including the chiefs, under the state civil service system.

Section 21-31-13 then mandates the coverage. It applies to "all full paid employees of the fire and/or police departments, including the chiefs of those departments." The AG's conclusion: if the McComb police chief is a full-paid employee, the city cannot remove civil-service protection from that position, including the right to a Civil Service Commission hearing on adverse action.

The opinion built on a 2019 AG opinion to the same Civil Service Commission about the McComb fire chief, which reached the same conclusion. McComb's special-charter argument failed twice over.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Mississippi has two municipal-governance frameworks that can run in parallel for older cities. A "special charter" is essentially a private act of the legislature creating a city with bespoke governance rules; the most common alternative is the general-law framework that applies to most Mississippi cities. McComb has a special charter dating to the 19th century. Section 88 of the Mississippi Constitution arguably preserves special charters from amendment by general law, but the Mississippi Supreme Court rejected that reading in McClure v. City of Natchez (1928) and reaffirmed it in Quinn v. City of McComb (1951): the legislature can amend a special charter through a general law that applies to all municipalities.

The civil service system in §§ 21-31-1 to 21-31-27 is mandatory for the cities it covers. City of Laurel v. Samuels, 469 So.2d 530 (Miss. 1985), held that the system "was intended to cover the employees of the fire and/or police departments of those municipalities coming within its purview." A municipality cannot opt out by ordinance or charter provision.

Section 21-31-1(2) lists the cities subject to the system. Among the categories is subsection (g), describing "Any municipality having a population of more than ten thousand (10,000) according to the federal census of 1970, which is located within a Class 1 county in which U.S. Highway 51 and U.S. Highway 98 intersect and bounded on the south by the State of Louisiana." This bespoke description hits McComb, the seat of Pike County, where U.S. 51 and U.S. 98 cross and which sits on the Louisiana line.

Section 21-31-13 sets the scope of coverage:

The civil service shall apply to all full paid employees of the fire and/or police departments of each municipality coming within its purview, including the chiefs of those departments.

That sentence is the coverage rule. Coverage extends to chiefs. McComb cannot exclude the police chief from civil service. The AG's reasoning on the special-charter question is a straightforward application of Quinn and McClure: the legislature amended the McComb charter through the general civil service law, and the coverage rule cannot be undone by city action.

The right that comes with civil-service protection is procedural. A protected employee is entitled to written charges, a Civil Service Commission hearing, and a record on which any termination or demotion is based. The Commission's findings are then judicially reviewable.

Common questions

Q: What does "full paid" mean in this context?
A: The opinion does not define it but the term separates compensated full-time employees from volunteers. Volunteer firefighters, for example, are not "full paid" and are not within the civil service umbrella. A police chief who draws a salary as the city's primary law-enforcement administrator is full paid.

Q: Could the city demote the police chief to a non-protected administrative position?
A: That would not work as a workaround. The civil service rules apply to police-department employees as long as they are full-paid. Reorganization aimed at stripping protection would be vulnerable to challenge as a pretextual evasion.

Q: What about a city that grew over 10,000 only after 1970?
A: The statute uses the 1970 federal census specifically, so post-1970 growth does not trigger coverage under (2)(g). McComb already exceeded 10,000 in 1970, so the rule applies; cities that crossed the threshold later would have to find another subsection.

Q: How is this different from at-will employment?
A: Standard at-will employment lets the employer terminate without cause and without process. Civil service is for cause only, with notice, hearing, and review. The protection is significant; it is also why municipal officials sometimes resist its application.

Q: Does the police chief have full civil service rights including hearing?
A: Yes. The opinion specifically references "the right to request a hearing before the Civil Service Commission" as part of the protection that cannot be removed.

Citations and references

Statutes:
- Miss. Code Ann. § 21-31-1 (Civil service system creation)
- Miss. Code Ann. § 21-31-1(2)(g) (Geographic-demographic description applying to McComb)
- Miss. Code Ann. § 21-31-13 (Coverage extends to chiefs)
- Miss. Code Ann. §§ 21-31-1 to 21-31-27 (Full civil service framework)

Cases:
- City of Laurel v. Samuels, 469 So.2d 530 (Miss. 1985)
- Quinn v. City of McComb, 212 Miss. 730 (1951)
- McClure v. City of Natchez, 151 Miss. 718, 118 So. 616 (1928)

Prior AG opinions:
- MS AG Op., Lazarus (February 15, 2019) (re fire chief)
- MS AG Op., Sullivan (October 19, 2011)
- MS AG Op., Turnage (March 23, 2012)
- MS AG Op., Gaylor (December 15, 2006)

Source

Original opinion text

June 5, 2020

Mr. Don Lazarus
Chairman, Civil Service Commission Board
City of McComb
Post Office Box 766
McComb, Mississippi 39649

Re: Civil Service Commission

Dear Chairman Lazarus:

The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.

Question Presented

Does Miss. Code Ann. Section 21-31-1, et seq. supersede the Special Charter of the City of McComb regarding the police chief's right to civil service protection?

Brief Response

If the police chief is a full paid employee, the governing authorities of the City of McComb may not remove the civil service protection afforded to him/her by Miss. Code Ann. Sections 21-31-1, et seq., including the right to request a hearing before the Civil Service Commission.

Applicable Law and Discussion

We reference our previously issued opinion to the Civil Service Commission for the City of McComb, in which we stated the governing authorities of the City of McComb could not remove the civil service protection afforded to the fire chief by Miss. Code Ann. Sections 21-31-1 through 21-31-27. See, MS AG Op., Lazarus (February 15, 2019).

The civil service system established by Miss. Code Ann. Sections 21-31-1 through 21-31-27 is mandatory and was intended to cover the employees of the fire and/or police departments of those municipalities coming within its purview. City of Laurel v. Samuels, 469 So.2d 530 (Miss. 1985).

In Quinn v. City of McComb, the Mississippi Supreme Court stated that, "Section 88 of the Constitution is no obstacle, because in McClure v. City of Natchez, 151 Miss. 718, 118 So. 616 (1928), and the authorities there cited, it was held that the Legislature may amend the charters of municipalities, operating under special charters, by a general law applying to all municipalities." 212 Miss. 730, 738 (1951); see also, MS AG Op., Sullivan (October 19, 2011); MS AG Op., Turnage (March 23, 2012).

Section 21-31-1 of the Mississippi Code Annotated provides, in relevant part:

(1) A civil service commission is created in every municipality described in subsection (2) which has a full paid fire and police department.

(2) The provisions of subsection (1) of this section shall apply to:

(g) Any municipality having a population of more than ten thousand (10,000) according to the federal census of 1970, which is located within a Class 1 county in which U.S. Highway 51 and U.S. Highway 98 intersect and bounded on the south by the State of Louisiana ...

While special charter provisions generally prevail over provisions of general municipal law, the Mississippi Legislature has made the civil service provisions of Section 21-31-1 et seq. specifically applicable to the City of McComb via Section 21-31-1(2)(g). Therefore, the Legislature has amended the McComb Special Charter to place the full paid police and fire department employees, including the chiefs, under the cited statutory civil service provisions. Chapter 31, Title 21 is, therefore, controlling over the provisions of Section 6 of the McComb Special Charter. See MS AG Op., Gaylor (December 15, 2006).

As to the coverage afforded by the civil service system, Section 21-31-13 specifically requires that coverage be afforded to "all full paid employees of the fire and/or police departments of each municipality coming within its purview, including the chiefs of those departments." If the police chief is a full paid employee of the police department, the City of McComb must provide civil service coverage based upon the express requirement of coverage for chiefs of the fire and police departments contained in Section 21-31-13. Thus, the municipal governing authorities may not remove civil service coverage from the position of a full paid police chief.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Kim Turner
Kim Turner
Assistant Attorney General