Can a Mississippi alderman who is also a PERS retiree skip his alderman salary so he can keep his retirement check, and what does the town have to do to make it official?

Plain-English summary

A new alderman for the Town of Weir was already a PERS (Public Employees Retirement System) retiree drawing a retirement allowance. He wanted to waive his alderman pay so he could keep collecting his PERS check without running into the in-service distribution rules. The town confirmed that it has a joinder agreement with PERS covering its locally elected officials, so its aldermen are PERS-covered service.

The AG's answer is yes, this is fully provided for by statute. Section 25-11-127(6)(a) lays out two paths for a PERS retiree elected to municipal or county office:

1. Path 1 (Section 25-11-127(6)(a)(i)) is the waiver path: the official files a written waiver of all salary and compensation, in exchange for which the retirement allowance continues. Office expense allowance, mileage, and travel reimbursement are still permitted on top of the retirement check.

2. Path 2 (Section 25-11-127(6)(a)(ii)) is the partial-pay path: the official elects to receive compensation up to 25% of the retiree's average compensation, in addition to the retirement allowance. This requires an annual written election filed in both the employer's office and the PERS executive director's office.

The Weir alderman wants Path 1. To make it work, he files the waiver each year, in writing, in the Town's office and in the PERS executive director's office, before he takes office or as soon as possible after retirement. The town board does not have to "accept" the waiver in any formal vote; the act of filing is the authoritative event.

The opinion ties back to MS AG Op., Davis (Feb. 10, 2003), which had reached the same conclusion under the same statute. So the rule is settled.

What this means for you

PERS retirees in municipal or county office

The opinion holds it is lawful for a PERS retiree elected to municipal or county office to waive all salary or compensation under Section 25-11-127(6)(a)(i) and keep the retirement allowance. Under the statute quoted in the opinion, that waiver must be filed annually, in writing, in the office of the employer and the office of the PERS executive director. The same subsection allows office expense allowance, mileage, and travel expense in addition to the retirement allowance. The statute also describes a second option (subsection (6)(a)(ii)) under which the official instead elects compensation up to 25% of the retiree's average compensation, also filed annually.

Town clerks and municipal HR administrators

The opinion holds there is no requirement that the board make a finding of acceptance of the PERS waiver form; the annual filing in the employer's office and the PERS executive director's office is the step the statute requires.

Town attorneys

The opinion confirms that, where the municipality has a PERS joinder agreement covering its elected officials, the waiver path of Section 25-11-127(6)(a)(i) is available and no board acceptance vote is needed. It cites the 2003 Davis opinion as reaching the same conclusion.

PERS administrators and counsel

The opinion reads Section 25-11-127(6)(a) consistently with the 2003 Davis opinion and turns on the Town's existing joinder agreement, which brings its locally elected officials into PERS coverage.

Common questions

Q: What is "in-service distribution" and why does it matter?
A: Federal tax law generally prohibits a tax-qualified retirement plan from paying retirement benefits to a person who is still actively employed by the same employer (in-service distribution). Section 25-11-127(6)(a) is structured to avoid that problem: the waiver of pay (Path 1) or the cap at 25% of average compensation (Path 2) keeps the official's PERS status compatible with continued retirement payments.

Q: Does the alderman get to keep mileage and travel reimbursement?
A: Yes. Section 25-11-127(6)(a)(i) expressly permits "office expense allowance, mileage or travel expense authorized by any statute of the State of Mississippi" on top of the retirement allowance. Reimbursement of actual expenses is not "compensation" for purposes of the waiver.

Q: Does the town have to vote to accept the waiver?
A: No. The opinion explicitly says there is no requirement that the board make a finding of acceptance of the PERS waiver form. The filing is what counts. (As a practical matter, the town clerk should still acknowledge receipt and file a copy.)

Q: What if the official misses the annual re-filing?
A: That creates a compliance problem. The statute requires annual filing in both the employer's office and the PERS executive director's office. A missed filing puts the official's status at risk; PERS may treat continued service without a current waiver as triggering in-service distribution rules. The official should re-file as soon as possible and consult with PERS about cure procedures.

Q: Could an alderman elect mid-term to switch from Path 1 to Path 2?
A: This opinion does not directly address mid-term switching. A conservative reading is that the official should make a clean election each year by filing the appropriate form. A mid-year switch would likely require coordinating with both the town and PERS to avoid double-treatment of compensation.

Q: What about local elected officials whose municipalities don't have a joinder agreement with PERS?
A: Section 25-11-127(6)(a) applies only to municipal or county elected offices that are covered by PERS. Without a joinder agreement, the local office is not PERS-covered service, and the waiver/election machinery doesn't apply (because there is no PERS-coverage problem to solve). Most municipalities do have joinder agreements; verify yours.

Background and statutory framework

Mississippi's Public Employees Retirement System (PERS) operates as a tax-qualified defined-benefit plan under federal law. Federal law (Internal Revenue Code § 401(a) and related provisions) generally prohibits in-service distributions, meaning a participant cannot receive retirement benefits while continuing to work for the same employer in covered service.

Mississippi handles the elected-official-as-retiree problem through Section 25-11-127. Subsection (6)(a) provides two paths:

• Path 1 (waiver): The retiree continues in office but waives all salary or compensation, keeping only the retirement allowance plus expense reimbursement. Annual filing required.
• Path 2 (partial pay): The retiree elects to receive compensation up to 25% of their average compensation, in addition to the retirement allowance. Annual filing required.

Path 1 is the path the Weir alderman took. The question Town counsel raised was whether the town needed to formally accept the waiver. The AG, citing the plain text of subsection (6)(a)(i), said no. The waiver is filed by the official; the town's role is to receive and maintain the filing, not to vote on it. PERS receives a parallel filing at the executive director's office.

The framework dates back at least to MS AG Op., Davis (Feb. 10, 2003), which reached the same conclusion. The 2025 Young opinion adds nothing new doctrinally; it just provides a fresh citation for newly elected officials and town clerks who need to confirm the procedure.

For municipalities that have a PERS joinder agreement covering elected officials (most do), this is the default framework. The joinder agreement is the document that brings the office into PERS-covered service in the first place; without it, the elected office is not PERS-covered and Section 25-11-127(6)(a) does not apply.

Citations and references

Statutes:

• Miss. Code Ann. § 25-11-127 (reemployment of retired persons)

Prior AG opinions referenced:

• MS AG Op., Davis (Feb. 10, 2003) (waiver of pay under Section 25-11-127(6)(a)(i))

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2025/12/K.-Young-December-16-2025-Municipal-Elected-Official-Waiver-of-Pay-as-PERS-Retiree.pdf

Original opinion text

December 16, 2025

Kasey Burney Young, Esq.
Attorney, Town of Weir
Post Office Box 1187
Ackerman, Mississippi 39735

Re: Municipal Elected Official Waiver of Pay as PERS Retiree

Dear Ms. Young:

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

Background

According to your request, a newly elected alderman for the Town of Weir ("Town") has requested to waive payment for the position of alderman because of his Public Employee Retirement System of Mississippi ("PERS") retirement status. PERS has confirmed that the Town has a joinder agreement with the board of trustees of PERS, which provides PERS coverage to its locally elected officials, such as aldermen.

Questions Presented

1. Is it lawful for the Town to accept a waiver of pay by the alderman?

2. If it is lawful, must the board make a finding of acceptance of the PERS waiver form or is submission of said form the only necessary step to ensure compliance?

Brief Response

1. Yes. It is lawful for the Town to accept "a waiver of all salary or compensation" pursuant to Mississippi Code Annotated Section 25-11-127(6)(a).

2. Pursuant to Section 25-11-127(6)(a)(i), a member must annually file such waiver "in the office of the employer and the office of the executive director of the system." There is no requirement that the board make a finding of acceptance of the PERS waiver form.

Applicable Law and Discussion

Section 25-11-127 addresses the reemployment of retired persons. Relevant here, Subsection (6)(a) provides:

A member may retire and continue in municipal or county elective office provided that the member has reached the age and/or service requirement that will not result in a prohibited in-service distribution as defined by the Internal Revenue Service, or a retiree may be elected to a municipal or county office, provided that the person:

(i) Files annually, in writing, in the office of the employer and the office of the executive director of the system before the person takes office or as soon as possible after retirement, a waiver of all salary or compensation and elects to receive in lieu of that salary or compensation a retirement allowance as provided in this section, in which event no salary or compensation shall thereafter be due or payable for those services; however, any such officer or employee may receive, in addition to the retirement allowance, office expense allowance, mileage or travel expense authorized by any statute of the State of Mississippi; or

(ii) Elects to receive compensation for that elective office in an amount not to exceed twenty-five percent (25%) of the retiree's average compensation. In order to receive compensation as allowed in this subparagraph, the retiree shall file annually, in writing, in the office of the employer and the office of the executive director of the system, an election to receive, in addition to a retirement allowance, compensation as allowed in this subparagraph.

Accordingly, because the Town has a joinder agreement with PERS that provides PERS coverage to its locally elected officials such as the subject alderman, it is lawful for the Town to accept the alderman's waiver of pay pursuant to Section 25-11-127(6)(a)(i). See also MS AG Op., Davis at *1-2 (Feb. 10, 2003) (concluding same).

You next ask if the board must make a finding of acceptance of the PERS waiver form or if the submission of said form is the only necessary step to ensure compliance. Pursuant to Section 25-11-127(6)(a)(i), a member must annually file such waiver "in the office of the employer and the office of the executive director of the system." There is no requirement that the board make a finding of acceptance of the PERS waiver form.

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/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General