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 and city clerks

Under the opinion, a code-charter mayor's superintending control under Section 21-3-15 "includes access to city employee personnel records," and the 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." The opinion ties the access to the mayor's duties, not to personal use: it states "[r]ecords may only be accessed for lawful purposes," and anyone reviewing confidential personnel records "must maintain that confidentiality." The opinion does not set out a request procedure, a logging system, or a list of permitted uses; it answers the two questions asked.

For aldermen and city employees

The opinion notes (quoting the Young opinion) that members of the governing authority, "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." It also restates the confidentiality rule: a person who gains 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." The opinion does not describe what those penalties are or lay out an employee complaint process.

Common questions

Q: Can a code-charter mayor see city employee personnel records?
A: Yes. The opinion holds Section 21-3-15's grant of executive power and "superintending control of all the officers and affairs of the municipality" includes access to city employee personnel records.

Q: Does the city clerk have to give the mayor unlimited access?
A: The opinion frames it as access tied to the mayor's duties: the 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." It also states records "may only be accessed for lawful purposes."

Q: Does the mayor have to keep what's in the records confidential?
A: Yes. The opinion says confidential 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," and that failure to protect them "could result in penalties and/or potential liability."

Q: Do aldermen have the same access?
A: The opinion quotes the Young opinion that members of the governing authority, including the mayor and aldermen, "have full rights of access to information which is necessary to perform their duties on behalf of the municipality." It does not separately detail an aldermen-specific procedure.

Background and statutory framework

Section 21-3-15 sets the powers of a mayor in a code charter form of government: "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 opinion reads "superintending control" through prior AG opinions: Pepper defines it as "general oversight and supervision of municipal departments and employees, of all the officers, employees and affairs of the municipality"; Reynolds describes the mayor as "the chief executive officer" with "general supervisory oversight of municipal government"; and Young holds that governing-authority members have full rights of access to information necessary to perform their duties, while requiring that confidential records reviewed in that capacity remain confidential. Wall (quoting Stovall) supplies the affirmative-duty-to-protect rule. From those, the opinion concludes the mayor needs access to personnel records to exercise oversight, and the clerk must provide it, subject to the confidentiality duty.

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