In a Mississippi mayor-council city, who controls and evaluates the civil service commission's secretary, the mayor or the commission?
Plain-English summary
The City of Meridian operates under a mayor-council form of government and has a Civil Service Commission. The commission has a secretary. The Meridian city attorney asked the AG three related questions about who controls and evaluates the secretary, and what role (if any) the mayor plays.
The AG's answers:
- Who controls the secretary's day-to-day commission work? The civil service commission. The commission appointed the secretary under § 21-31-7, the secretary's duties run to the commission, and the commission therefore controls the day-to-day commission work.
- Who evaluates the secretary's commission performance? Same answer. The commission has authority to evaluate, suspend, or discharge the secretary under §§ 21-31-7 and 21-31-5(2).
- Does the mayor control any of this? No. The mayor in a strong-mayor government does not control the secretary's work for the commission.
The AG explicitly modified a prior 2014 Palmer opinion to the extent it suggested that the mayor and council, as the appointing power for commissioners in a mayor-council city, also had power to suspend and discharge the commission secretary. The AG's reasoning: the appointing authority for the secretary is the commission itself (under § 21-31-7), not the mayor and council. The "appointing power" that can remove a member under § 21-31-5(2) is the entity that did the appointing. Because the commission, not the mayor and council, appoints the secretary, the commission has removal power.
The opinion also flags that if the secretary holds a separate position as a city employee outside the civil service secretary role, work in that separate capacity is governed by general employment law and is not addressed by this opinion. The AG also declined to interpret the local Bylaws or to validate or invalidate past actions, citing § 7-5-25.
What this means for you
Mayor-council city attorneys
The opinion turns on which body is the "appointing power." Under § 21-31-5(2), a commission member may be removed "by the appointing power," and § 21-8-23(5) makes the mayor and council the appointing power for the commissioners. But the secretary is appointed by the commission itself under § 21-31-7, so the opinion holds the commission, not the mayor and council, is the appointing power that can suspend or remove the secretary. To the extent the prior Palmer opinion said the mayor and council could discharge the secretary, the opinion expressly modifies it. The opinion also notes that if the secretary "also serves as an employee of the city, separate from his or her role as civil service secretary," that separate work is governed by general employment law and is outside the opinion's scope.
Civil service commissioners
The opinion holds that, with respect to commission work, the commission controls the secretary's day-to-day activities and may evaluate, suspend, or discharge the secretary under §§ 21-31-7 and 21-31-5(2). It ties this to § 21-31-7's directive that the secretary keep the records, preserve reports, and perform such other duties as the commission may prescribe.
Mayors in a mayor-council city
The opinion answers the mayor question directly: "The mayor does not have control of the civil service secretary's work for the civil service commission." The mayor and council remain the appointing power for the commissioners themselves under § 21-8-23(5). Where the secretary performs separate city duties, the opinion says that work is governed by applicable employment laws and is outside its scope.
Common questions
Q: Who appoints the civil service commissioners in a mayor-council city?
A: § 21-8-23(5) makes the mayor and city council the appointing authority for the civil service commission in a mayor-council form of government. They appoint commissioners but not the secretary.
Q: Who appoints the civil service secretary?
A: The civil service commission itself, under § 21-31-7. That is the change Palmer (2014) muddled and this opinion clarifies.
Q: How is a commission member removed?
A: § 21-31-5(2): "Any member of such commission may be removed from office for incompetency, incompatibility, dereliction of duty, or other good cause, by the appointing power." Removal requires written charges and a full hearing before the appointing power, with a 30-day right of appeal to the circuit court. The court reviews whether removal was made "in good faith and for cause," with the option of jury trial.
Q: Is removal of the secretary done the same way?
A: Yes. § 21-31-7 says the secretary is "subject to suspension and discharge in the same manner as the commissioners." The procedure mirrors § 21-31-5(2), but the body that exercises the authority is the commission, not the mayor and council.
Q: What does the Palmer opinion say, and what changed?
A: Palmer (Mar. 14, 2014) said that since the mayor and council appoint the commission in mayor-council government, they also have authority to suspend or discharge the secretary. The 2023 Wilson opinion modifies Palmer by recognizing that the secretary is appointed by the commission, so the commission, not the mayor and council, is the relevant "appointing power" for removal.
Q: Can a civil service secretary also be a regular city employee with other duties?
A: Yes. The opinion notes that the secretary "also serves as an employee of the city, separate from his or her role as civil service secretary." For those separate duties, normal employment law and the city's mayor-council authority apply.
Q: Why did the AG decline to interpret Meridian's local Bylaws?
A: Under § 7-5-25, AG opinions are limited to questions of state law and to prospective questions. Local bylaws and procedures, and validation or invalidation of past actions, are outside that scope.
Background and statutory framework
The opinion describes a municipal civil service structure in which commissioners are appointed under § 21-31-5 and the commission, once seated, appoints its own secretary under § 21-31-7. The secretary's role, per § 21-31-7, is to "keep the records and preserve all reports made to the commission, and also a record of all examinations held under the direction of the board of examiners, and perform such other duties as the commission may prescribe."
The structural question comes from two overlapping appointment regimes. In a mayor-council city like Meridian, § 21-8-23(5) makes the mayor and council the appointing power for the commissioners. The commissioners, in turn, appoint the secretary under § 21-31-7. Because § 21-31-5(2) lets "the appointing power" remove for cause, the opinion reasons that the relevant appointing power depends on who did the appointing: the mayor and council for commissioners, the commission for the secretary.
On that basis the opinion modifies the prior Palmer opinion. It keeps Palmer's holding that the secretary is suspended or discharged "in the same manner, i.e., the same procedure," as commissioners (written charges, a full hearing, a 30-day right of appeal to circuit court, and judicial review for good faith and cause under § 21-31-5(2)), but corrects Palmer's further statement that the mayor and council could discharge the secretary. The body that exercises that authority over the secretary is the commission.
Citations and references
Statutes:
- Miss. Code Ann. § 21-31-5 (civil service commission appointment of commissioners)
- Miss. Code Ann. § 21-31-5(2) (procedure for removal of commission members by the appointing power)
- Miss. Code Ann. § 21-31-7 (commission appointment of secretary; secretary's duties; suspension and discharge in same manner as commissioners)
- Miss. Code Ann. § 21-8-23(5) (mayor-council form of government; mayor and council as appointing power for commissions)
- Miss. Code Ann. § 7-5-25 (limits on AG opinion authority; prospective questions only)
Prior AG opinions referenced:
- MS AG Op., Tullos (Aug. 27, 2018): interpretation of local policies and procedures is outside scope of an official AG opinion.
- MS AG Op., Brock (Nov. 8, 2019): AG opinions are limited to prospective questions of state law.
- MS AG Op., Palmer (Mar. 14, 2014): § 21-31-7 authorizes the suspension and discharge of the secretary in the same procedural manner as for commissioners. Modified by this 2023 opinion to clarify that the commission, not the mayor and council, is the appointing power for the secretary.
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/09/S.Wilson-September-14-2023-Civil-Service-Secretary.pdf
Original opinion text
September 14, 2023
Stephen P. Wilson, Esq.
Attorney, City of Meridian
Post Office Box 2809
Meridian, Mississippi 39302-2809
Re: Civil Service Secretary
Dear Mr. Wilson:
The Office of the Attorney General has received your request for an official opinion.
Questions Presented
- Which person or entity controls the day-to-day activities of the civil service secretary?
- Who is responsible for evaluating the performance of the civil service secretary?
- What aspects of control, if any, does a mayor in a strong mayor form of government have over the civil service secretary's work for the civil service commission?
Brief Response
- Because the civil service secretary is appointed by the civil service commission and is required to "keep the records and preserve all reports made to the commission, and also a record of all examinations held under the direction of the board of examiners, and perform such other duties as the commission may prescribe" in accordance with Mississippi Code Annotated Section 21-31-7, it is the opinion of this office, with respect to commission work, that the civil service commission controls the day-to-day activities of the civil service secretary.
- With respect to the civil service secretary's work for the civil service commission, the civil service commission has the authority to evaluate the performance of and suspend or discharge the civil service secretary in accordance with Sections 21-31-7 and 21-31-5(2).
- The mayor does not have control of the civil service secretary's work for the civil service commission.
Applicable Law and Discussion
As an initial matter, your request references the Bylaws and Standing Operating Procedures of the Civil Service Commission of the City of Meridian ("Bylaws"). However, interpretation of these local policies and procedures is outside the scope of an official Attorney General's opinion. MS AG Op., Tullos at 1 (Aug. 27, 2018). Further, we do not by official opinion validate or invalidate past action. Pursuant to Section 7-5-25, opinions of this office are limited to prospective questions of state law. MS AG Op., Brock at 1 (Nov. 8, 2019). Accordingly, we offer no opinion on the Bylaws or any action previously taken by Meridian's Civil Service Commission or its Mayor.
In municipalities in which a civil service commission ("commission") is required, the commissioners are appointed in accordance with Section 21-31-5. The secretary of the civil service commission ("civil service secretary") is appointed by the commission pursuant to Section 21-31-7 and is required to "keep the records and preserve all reports made to the commission, and also a record of all examinations held under the direction of the board of examiners, and perform such other duties as the commission may prescribe." Section 21-31-7 further provides that the civil service secretary is "subject to suspension and discharge in the same manner as the commissioners." (emphasis added). Section 21-31-5(2) provides the following procedure for removal of a commissioner:
Any member of such commission may be removed from office for incompetency, incompatibility, dereliction of duty, or other good cause, by the appointing power. However, no member shall be removed until charges have been preferred in writing and a full hearing had before the appointing power. Any member being so removed shall have the right of appeal, any time within thirty (30) days thereafter, to the circuit court and may demand a jury trial; such trial shall be confined to the determination of whether the order of removal, made by the appointing power, was, or was not, made in good faith and for cause.
(emphasis added). This office has previously opined that Section 21-31-7 "authoriz[es] the suspension and/or the discharge of the secretary, but it must be done in the same manner, i.e., the same procedure, as that for the removal of civil service commissioners." MS AG Op., Palmer at 4 (Mar. 14, 2014). This remains the opinion of this office. However, the Palmer opinion goes on to state that because the mayor and city council appoint the commission in a mayor-council form of government, the mayor and city council also have the authority to suspend and/or discharge the commission secretary. Palmer at 2. Notably, Section 21-31-5(2) speaks to the authority of the "appointing power" to remove a commissioner. Pursuant to Section 21-8-23(5), the mayor and city council are the appointing authority for the commission in a mayor-council form of government such as Meridian's. However, the civil service secretary is appointed by the commission itself, not the mayor and city council. Miss. Code Ann. § 21-31-7. Accordingly, it is the opinion of this office that the commission, as the appointing power of the civil service secretary, has the authority to remove or suspend the civil service secretary pursuant to Sections 21-31-7 and 21-31-5(2). To the extent that the Palmer opinion conflicts, it is hereby modified.
Because the civil service secretary performs duties as assigned by the commission, and the commission has the authority to suspend or remove the civil service secretary, it is the opinion of this office that the commission controls the day-to-day activities of the civil service secretary with respect to work for the commission. It follows that the commission has the authority to evaluate the civil service secretary's performance with respect to the civil service secretary's work for the commission. Therefore, it is the opinion of this office that the mayor does not have control of the civil service secretary's work for the commission. Your request indicates that the civil service secretary also serves as an employee of the city, separate from his or her role as civil service secretary. Any work that this employee does separate from the work as civil service secretary would be in accordance with any employment laws and regulations applicable to mayor-council forms of government and is outside the scope of this opinion.
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/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General