Can a Mississippi code-charter mayor access city employee personnel records?

Plain-English summary

Poplarville's city attorney asked whether the mayor (under code charter form of government) has access to city employee personnel records, and whether the city clerk must provide unlimited access.

The AG: yes on both, with confidentiality obligations.

Section 21-3-15 sets the mayor's powers: "The executive power of the municipality shall be exercised by the mayor, and the mayor shall have the superintending control of all the officers and affairs of the municipality, and shall take care that the laws and ordinances are executed."

"Superintending control" means general oversight and supervision of municipal departments and employees (per the 2014 Pepper opinion). The mayor is the chief executive officer, with supervisory oversight of municipal government and daily operations (per the 2007 Reynolds opinion).

Members of the governing authority (mayor and aldermen) have "full rights of access to information which is necessary to perform their duties on behalf of the municipality" (per the 2004 Young opinion).

So the mayor needs access to personnel records to exercise oversight, and the clerk must provide it.

Confidentiality: Personnel records are confidential under state law. The mayor's access is for the scope of performing duties on behalf of the municipality, not for personal use. The 2017 Wall opinion (citing 2004 Stovall) makes clear that anyone with access "has an affirmative duty to protect the confidentiality of those records, and failure to so protect those records could result in penalties and/or potential liability."

What this means for you

For mayors

You have access to personnel records. The clerk must produce them when you ask. But:

1. Use the access for legitimate municipal purposes (HR decisions, performance issues, oversight)
2. Don't share what you see with people who don't need to know
3. Don't use the information for political or personal purposes
4. Don't keep copies in personal files; access the records through official channels
5. Document why you're accessing each record (in case the use is later questioned)

If a city employee or alderman accuses you of misuse of personnel records, the documentation showing legitimate purpose is your defense.

For city clerks

When the mayor asks for personnel records, provide them. Your authority to gatekeep is limited; the mayor's superintending control gives them access.

Best practices:

1. Keep a log of personnel record requests (who, when, what, purpose)
2. Mark personnel records as confidential
3. Coordinate with the city attorney on requests that seem unusual (e.g., records of an employee involved in litigation against the city)
4. Train any clerk's office staff on confidentiality

For municipal attorneys

Counsel the mayor and clerk on the framework:

1. Mayor has access; clerk must provide
2. Use must be for municipal purposes
3. Confidentiality must be maintained
4. Document access for accountability

For sensitive situations (e.g., HR investigations, litigation holds, EEOC charges), additional procedures may apply. Coordinate with the city attorney on each significant request.

For aldermen and council members

You also have access to information necessary to perform your duties (per Young 2004). But the scope and procedure may differ:

• Aldermen typically access through the city clerk or city manager
• The mayor's "superintending control" gives the mayor more direct day-to-day access
• Aldermen's access is tied to specific legislative oversight functions

If the city has formal HR processes (e.g., grievances, disciplinary appeals), aldermen may have role-specific access during those processes.

For city employees

Your personnel records are confidential, but the mayor and aldermen can access them for legitimate municipal purposes. They cannot share them publicly or use them for non-municipal purposes.

If you believe your records have been misused, you have potential remedies:

1. File a complaint with the Ethics Commission (for public officials)
2. Pursue civil action for breach of confidentiality
3. Report to the State Auditor for misuse of public office

The 2017 Wall and 2004 Stovall opinions establish that misuse can lead to penalties or liability.

For HR personnel in city departments

When personnel records are requested by the mayor (or the mayor's designate), provide them. Coordinate with the city clerk's record-keeping system. Maintain your own logs of who accessed what.

For records subject to special confidentiality (medical, EEOC, ADA, etc.), check whether additional federal protections layer on top of state law.

Common questions

Q: What's a "code charter" form of government?
A: Mississippi cities are organized under a Code Charter (general statutory framework, Section 21-3 et seq.) or a Special Charter (city-specific). Section 21-3-15 applies to code charter cities. Special charter cities may have different mayoral powers.

Q: Are personnel records "public records" subject to disclosure under the Mississippi Public Records Act?
A: Generally no. Section 25-1-100 and other provisions exempt personnel records from public disclosure. Internal access by authorized officials is different from public disclosure.

Q: Can the mayor share personnel records with aldermen?
A: Aldermen have access for their own duties under the 2004 Young opinion. The mayor sharing records with an alderman for a legitimate oversight purpose is permissible. Sharing for non-municipal purposes is not.

Q: Can the mayor share with the press?
A: No. Personnel records remain confidential. Public disclosure outside the municipal-purpose framework violates confidentiality and could create liability.

Q: Can the mayor make personnel decisions based on records they reviewed?
A: Yes. Hiring, firing, discipline, promotion decisions can use information from personnel records. The mayor's executive authority typically includes department-head decisions; specific authority for line-employee decisions depends on the city's framework.

Q: What if the city has a personnel committee or merit board?
A: Some cities have formal personnel committees or civil-service-style merit boards. Those bodies may have specific procedures and access rules. Check the city's ordinances for any specific personnel-records access framework.

Q: What about police department records?
A: Police personnel records are particularly sensitive (officer-involved incidents, internal affairs, etc.). State and federal law layer additional protections. The mayor's access still applies, but use restrictions are tighter.

Q: Can the mayor access records of a former employee?
A: Yes, where relevant to current municipal operations (e.g., reference checks, litigation involving former employee, audit concerns).

Q: What's the penalty for misuse of personnel records?
A: Variable. Possible consequences:
- Civil suit by employee for breach of confidentiality
- Mississippi Ethics Commission complaint
- State Auditor investigation
- Removal from office (in extreme cases)
- Criminal liability (if misuse rises to misuse of public office)

Q: Does this access include electronic records (HR systems, time clocks)?
A: Yes. Personnel records aren't just paper files. Electronic records, performance reviews, attendance records, payroll information all fall within the access framework.

Background and statutory framework

Mississippi's framework for mayoral authority in code charter cities:

Section 21-3-15: "The executive power of the municipality shall be exercised by the mayor, and the mayor shall have the superintending control of all the officers and affairs of the municipality, and shall take care that the laws and ordinances are executed."

The phrase "superintending control of all the officers and affairs of the municipality" has been interpreted by the AG to include:

• General oversight and supervision of municipal departments
• Authority over employees
• Daily operations of municipal government
• Access to information necessary for executive functions (including personnel records)

Confidentiality framework:
- Personnel records confidential under state law
- Authorized access by officials does not waive confidentiality
- Officials with access have an affirmative duty to maintain confidentiality
- Misuse can result in civil and potentially criminal liability

Key prior opinions:
- MS AG Op., Pepper (Jan. 17, 2014): "superintending control" defined as general oversight of officers, employees, and affairs
- MS AG Op., Reynolds (Mar. 30, 2007): mayor as chief executive; supervisory oversight
- MS AG Op., Young (July 1, 2004): governing authority members have full access to information necessary for duties; confidentiality must be maintained
- MS AG Op., Wall (Aug. 11, 2017) (citing Stovall, Jan. 6, 2004): affirmative duty to protect confidential records; penalties for breach

This 2022 opinion synthesizes the framework and applies it specifically to mayoral access of city employee personnel records.

Citations and references

Statutes:
- Miss. Code Ann. § 21-3-15, mayor's executive power and superintending control

Prior AG opinions cited:
- MS AG Op., Pepper (Jan. 17, 2014), defining "superintending control"
- MS AG Op., Reynolds (Mar. 30, 2007), mayor as chief executive
- MS AG Op., Young (July 1, 2004), governing authority access to information
- MS AG Op., Wall (Aug. 11, 2017), confidentiality duty
- MS AG Op., Stovall (Jan. 6, 2004), confidentiality affirmative duty

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/07/G.Holcomb-July-11-2022-Mayors-Access-to-City-Employee-Personnel-Records.pdf

Original opinion text

July 11, 2022

Gregory P. Holcomb, Esq.
Attorney, City of Poplarville
Post Office Box 113
Poplarville, Mississippi 39470

Re: Mayor's Access to City Employee Personnel Records

Dear Mr. Holcomb:

The Office of the Attorney General has received your request for an official opinion.

Questions Presented

1. Under a code charter form of government, does the power and control extended to the mayor by Mississippi Code Annotated Section 21-3-15 allow for the mayor to have access to city employee personnel records?
2. If the answer to the previous question is "yes," must the city clerk provide the mayor unlimited access to the city employee personnel records?

Brief Response

1. Section 21-3-15 gives the mayor executive power of the municipality and superintending control of all the officers and affairs of the municipality, which includes access to city employee personnel records.
2. The clerk must provide the mayor with full rights of access to information that is necessary to perform his/her respective duties on behalf of the municipality.

Applicable Law and Discussion

Mississippi Code Annotated Section 21-3-15 sets forth the powers of a mayor in a code charter form of government, and states, in pertinent part: "The executive power of the municipality shall be exercised by the mayor, and the mayor shall have the superintending control of all the officers and affairs of the municipality, and shall take care that the laws and ordinances are executed." This office has previously explained that "superintending control" as used in Section 21-3-15 means the "general oversight and supervision of municipal departments and employees, of all the officers, employees and affairs of the municipality." MS AG Op., Pepper at 1 (Jan. 17, 2014). "The mayor, as the chief executive officer, has general supervisory oversight of municipal government and the daily operation of municipal government is to be supervised by the mayor to ensure that proper services are provided." MS AG Op., Reynolds at 2 (Mar. 30, 2007). This office further opined in MS AG Op., Young at *1 (July 1, 2004) "that members of the governing authority of a municipality, which includes the mayor and aldermen, have full rights of access to information which is necessary to perform their duties on behalf of the municipality."

Therefore, it is the opinion of this office that for the mayor to exercise general oversight and supervision of municipal departments and employees, it is necessary for the mayor to have access to city employee personnel records, and the city clerk must provide the mayor full access to personnel records and other information that is necessary to perform his/her duties on behalf of the municipality.

Records may only be accessed for lawful purposes. The mayor and any other individual with access to employee records must recognize that "[r]ecords which are confidential under state law, such as personnel records, may be reviewed in the scope of performance of duties on behalf of the municipality, although anyone reviewing those documents must maintain that confidentiality." Young at 1 (July 1, 2004). "[A]ny person who has gained access to confidential personnel records 'has an affirmative duty to protect the confidentiality of those records, and failure to so protect those records could result in penalties and/or potential liability.'" MS AG Op., Wall at 1 (Aug. 11, 2017) (quoting MS AG Op., Stovall (Jan. 6, 2004)).

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/ Gregory Alston
Gregory Alston
Special Assistant Attorney General