Mississippi Advisory Opinions January 10, 1996: AGO 96-0005 (January 10, 1996)

Advisory Opinion Text

Honorable H. Russell Rogers

Oktibbeha County Board of Supervisors

Post Office Drawer 59

Starkville, Mississippi 39759

Re: Employment of Constable as Deputy Sheriff

Dear Mr. Rogers:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

The Oktibbeha County Board of Supervisors recently received an Opinion from the Mississippi Ethics Commission which conflicts with several earlier Attorney General's Opinions regarding the employment of a Constable in the position of full time or part time Deputy Sheriff. In light of this conflict, the Board has asked that I write to you for an updated opinion on the following issue:

Is a county permitted to employ in its Sheriff's Department as a full time Deputy Sheriff an individual that is also serving as a duly elected Constable for the same county?

Is a county permitted to employ in its Sheriff's Department as a part time Deputy Sheriff an individual that is also serving as a duly elected Constable for the same county?

In response, the prior opinions from this office dealing with this issue have been based on a constitutional interpretation that an individual serving as both a constable and a deputy sheriff does not violate Sections 1 and 2 (the separation of powers clause) of the Mississippi Constitution of 1890. Our prior opinions have not addressed the ethical issue which has been addressed by the Mississippi Ethics Commission. This office routinely defers any issue dealing with the ethics laws of the State of Mississippi to the Mississippi Ethics Commission which has the authority to issue opinions on such matters.

Based on the recent opinion from the Mississippi Ethics Commission (attached) a constable may not be employed by the sheriff's department without violating Mississippi Code Section 25-4-105(3)(a) .

If this office can be of any further assistance, please let us know.

Very truly yours,

Mike Moore, Attorney General.

David K. Scott, Special Assistant Attorney General.

November 10, 1995

This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on November 10, 1995.

May an individual elected constable continue working as a deputy sheriff for the county in which he was elected to serve as constable?

The Mississippi Ethics Commission is restricted to interpreting and issuing opinions on Sections 25-4-101 through 25-4-119, 1972 Mississippi Code Annotated and Article IV, Section 109, Mississippi Constitution of 1890 . Therefore, Mississippi laws outside the jurisdiction of the Commission and internal rules and regulations of the local governmental entities are not addressed by this opinion.

The pertinent conflict of interest laws to be considered here are:

Code Section 25-4-103 (g)(i), (h) and (p)(i)(ii)(iii) states:

“(g) ‘Governmental’ means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties.

(h) ‘Governmental entity’ means the state, a county, a municipality or any other separate political subdivision authorized by law to exercise a part of the sovereign power of the state.

(p) ‘Public servant’ means:

(i) Any elected or appointed official of the government;

(ii) Any officer, director, commissioner, supervisor, chief, head, agent or employee of the government or any agency thereof, or of any public entity created by or under the laws of the State of Mississippi or created by an agency or governmental entity thereof, any of which is funded by public funds or which expends, authorizes or recommends the use of public funds; or

(iii) Any individual who receives a salary, per diem or expenses paid in whole or in part out of funds authorized to be expended by the government.”

Code Section 25-4-105(3)(a) states:

“(3) No public servant shall:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent.”

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered part of this opinion.

Our department has a Deputy Sheriff working for us that has been elected to the County Office of Constable. My question on this matter is ... If a Deputy Sheriff is elected to the Office of Constable can he remain on the Sheriff's Department's payroll and also be paid for his duties as Constable without violating the Ethics Commission?

The Commission formally adopts Advisory Opinion No. 95-031-E in response to this request and by attachment incorporates it into this opinion. Specifically, the requestor is referred to Issue 1 , page 3.

Based solely on the facts and circumstances presented in the requestor's letter, the Commission's opinion is that the deputy sheriff's continued employment with the sheriff's department once he takes his oath of office as constable does violate the above cited Code Section 25-4-105(3)(a) .

As stated in the attached advisory opinion, “The interpretation of Code Section 25-4-105(3)(a) is that a public servant may hold only one position with the authority of the governmental entity of which he or she is a member, officer, employee or agent.”

Ronald E. Crowe Executive Director

ADVISORY OPINION NO. 95-031-E

May 5, 1995

This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on May 5, 1995.

Are the Mississippi Ethics in Government laws violated should an individual be elected constable and:

1. continue as a road employee of the county; and

2. the constable-elect's spouse continue her employment as a deputy justice court clerk of the county?

The Mississippi Ethics Commission is restricted to interpreting and issuing opinions on Sections 25-4-101 through 25-4-119, 1972 Mississippi Code Annotated and Article IV, Section 109, Mississippi Constitution of 1890. Therefore, Mississippi laws outside the jurisdiction of the Commission and internal rules and regulations of the local governmental entity are not addressed by this opinion.

The Separation of Powers doctrine and the Nepotism law are areas of state law outside the jurisdiction of this Commission. Therefore, the requestor is advised to contact the office of the Attorney General regarding the above referenced laws and how they may effect these issues.

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered part of this opinion.

I have qualified as a candidate for Constable. I am currently employed as a road laborer with the County. My wife is currently employed as a deputy Justice Court Clerk with the County.

Question 1: Should I be elected, I plan on continuing my employment as a road employee. Would this be of any problem or in violation of any ethics laws? Can I be an elected official as Constable and continue to work for the County as a road employee?

Question 2: Should I be elected Constable, would there be any conflict of interest or any ethics laws that would prohibit or limit my wife in performing her duties and employment as a deputy Justice Court clerk?

I hope you see my situation. I mainly want to be assured that our present jobs will not be endangered if I am elected as Constable. I plan to withdraw from the race if your official opinion is that a problem would exist.

The pertinent conflict of interest laws to be considered are:

Code Section 25-4-103(g)(i), (h), (l), (p)(i)(ii)(iii) and (q) states:

“(g) ‘Government’ means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties;

(h) ‘Governmental entity’ means the state, a county, a municipality or any other separate political subdivision authorized by law to exercise a part of the sovereign power of the state.

(l) ‘Pecuniary benefit’ means benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain. Expenses associated with social occasions afforded public servants shall not be deemed a pecuniary benefit.

(p) ‘Public servant’ means:

(i) Any elected or appointed official of the government;

(ii) Any officer, director, commissioner, supervisor, chief, head, agent or employee of the government or any agency thereof, or of any public entity created by or under the laws of the state of Mississippi or created by an agency or governmental entity thereof, any of which is funded by public funds or which expends, authorizes or recommends the use of public funds; or

(iii) Any individual who receives a salary, per diem or expenses paid in whole in part out of funds authorized to be expended by the government.

(q) ‘Relative’ means the spouse, child or parent.”

Code Section 25-4-105(1) and (3)(a) states:

“(1) No public servant shall use his official position to obtain pecuniary benefit for himself other than that compensation provided for by law, or to obtain pecuniary benefit for any relative or any business with which he is associated.

(3) No public servant shall:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member.”

Issue 1 . Based on the facts and circumstances presanted by the requestor, the Commission's opinion is that the requestor's continued employment as a county road laborer should he be elected constable does violate the above cited Code Section 25-4-105(3)(a) .

The interpretation of Code Section 25-4-105(3)(a) is that a public servant may hold only one position with the authority of the governmental entity of which he or she is a member, officer, employee or agent. Therefore, the requestor must choose between his employment position as a county road laborer or the position of constable should he be elected.

Issue 2 . Based on the facts and circumstances presented by the requestor, the Commission's opinion is that the spouse's continued employment as a deputy justice court clerk should the requestor be elected constable does not in and of itself violate the conflict of interest laws.

Notwithstanding the above, the requestor and his spouse are cautioned not to use their official positions to obtain a pecuniary benefit for themselves, or each other, in violation of the above cited Code Section 25-4-105(1) . Public servants must keep the performance of their official duties entirely separate and distinct from any private interests.

Ronald E. Crowe Executive Director

December 29, 1995

P. O. Box 220

Jackson, MS 39205

RE: Employment of County Constable as full time or part time Deputy Sheriff

Hon. Mike Moore Attorney General of the State of Mississippi

Dear Mr. Moore:

The Oktibbeha County Board of Supervisors recently received an Opinion from the Mississippi Ethics Commission which conflicts with several earlier Attorney General's Opinions regarding the employment of a Constable in the position of full time or part time Deputy Sheriff. In light of this conflict, the Board has asked that I write to you for an updated opinion on the following issue:

Is a county permitted to employ in its Sheriff's Department as a full time Deputy Sheriff an individual that is also serving as a duly elected Constable for the same county?

Is a county permitted to employ in its Sheriff's Department as a part time Deputy Sheriff an individual that is also serving as a duly elected Constable for the same county?

In light of the recently distributed Opinion from the Mississippi Ethics Commissions, guidance from your office will be greatly appreciated.

Yours very truly,

Ward & Rogers, Pllc H. Russell Rogers

January 4, 1996

TRANSMISSION VIA FACSIMILE (601) 359-3796

Office of the Attorney General of the State of Mississippi

P. O. Box 220 Jackson,

MS 39205-0220

RE: Official Opinion Request dated December 29, 1995 from Oktibbeha County, Mississippi

David Scott, Esq. Special Assistant Attorney General

Dear Mr. Scott:

Hopefully, by the time you receive this correspondence we will have had an opportunity to confer by telephone.

I received Mr. Clark's letter of January 3, 1996 which instructed me to contact you immediately if the issue on which I requested an opinion touches on past action or if the issue is involved in litigation. In the mid 1980's the Oktibbeha County Sheriff's Department employed one of the Oktibbeha County Constables as a full time deputy. This action was based upon two Attorney General's Opinions, the first dated June 14, 1982 and directed to Honorable Kent F. Hudson, Lamar County Board Attorney, and the second dated September 10, 1984 and directed to Billy Ray Evans, who was a Constable for Clark County, Mississippi. The employment of a Constable by the Oktibbeha County Sheriff's Department has continued uninterrupted from the original hiring date.

This issue is also currently pending before the Circuit Court of Adams County, Mississippi in the case of John Cooley v. Danny L. Rollins and has been assigned Case No. 7323-J.

My request to you is generated by the concern of the Oktibbeha County Board of Supervisors, who certainly want to abide by the law, but at the same time do not want to impair the efficiency of the Sheriff's Department or deny the Constable of the additional employment.

I trust this additional information will help clarify the issues involved before Oktibbeha County.

Yours very truly,

Ward & Rogers, Pllc H. Russell Rogers.