Mississippi Advisory Opinions August 12, 1992: AGO 000006027 (August 12, 1992)

AGO 000006027.

Dear Mr. McWilliams:

Attorney General Mike Moore is in receipt of your letter dated July 8, 1992 and has assigned it to me for research and reply. In your letter you state the following:

I represent the Board of Supervisors of Sunflower County. We recently received a request from the County Coroner asking that the County pay to him certain sums which he paid into the State Retirement System for earnings from his office prior to the Coroner's Reorganization Act of 1986. I enclose a copy of that request with this letter.

Please advise me on behalf of the Board of Supervisors if the request of the coroner can be granted.

Further, we have a similar oral request from a Deputy Sheriff who served part-time from approximately 1970 until recent years and no payments were made into the retirement system during the time he was part-time employed. He now desires to pay into the retirement system the amounts which he would be required to pay on the salary earned while he was part-time and has requested the County to pay in its share on those earnings. We would appreciate your advice if the County is authorized to make any such payment on behalf of the Deputy Sheriff.

With respect to the first question concerning the coroner, we find that the law in 1982 provided that the office of coroner was an elected position and that the term of office was for four years. (See Mississippi Constitution Sections 135 and 143.) Generally, anyone appointed to fill the unexpired term of office of a public official accedes to the duties, responsibilities, and benefits of that office.

The law at that time provided also that under Section 19-21-33, of the Mississippi Code of 1972, as amended, the costs of all inquests would be paid out of the county treasury on the allowance and warrant of the board of supervisors. In addition, if the coroner were a medical doctor under the provisions of Section 19-21-51 et seq., then the law provided that the coroner would be paid a fee of twenty-five dollars per investigation upon the warrant and allowance of the board of supervisors payable out of the county treasury. Further, the statute authorized additional compensation for the performance of autopsies.

When a political subdivision or juristic entity joins the Retirement System to afford a retirement plan to its employees, then certain elections are available with respect to the coverage of those employees. Information from the Retirement System indicates that in this joinder agreement for Sunflower County which became effective October 15, 1952, that the Board of Supervisors elected to exclude from coverage only those services of an emergency nature and part-time positions. Elective positions were covered. Section 25-11-109(2) provides that any state or local elected official shall be deemed a full-time employee for the purpose of creditable service for prior service or membership service.

Thus, it would appear that in the case at hand that Mr. Card, in fulfilling the unexpired term of the elected county coroner position, would have been viewed as a covered elected official and that retirement contributions would have been due on the compensation paid to him as an employee by direct warrant on the county treasury. Of course, the county would only be responsible for the employer contributions on such amount and the employee would be responsible for the employee contributions on that amount.

Further, where there has been a failure to report a covered employee, prior opinions of this office have stated that if the failure to make such payments is the direct result of acts of the employee, then all interest payments due as a result of the failure to timely report such employee should be made by the employee. If the failure to make such payments is solely the fault of the employer, then interest should be paid by the employer, and if the failure to make such payments is due to mutual mistake or misunderstanding, then interest could be paid by both the employer and employee on the respective principal amounts due by each. (See attached Opinion dated March 28, 1974 to Honorable Donald M. Waits.)

Thus, in response to your question, it would appear that the county would have the authority as well as the duty to pay the employer contributions on the applicable compensation during such period as the covered employee was not properly reported to the Retirement System. Moreover, the county may be responsible for part or all of the interest for failing to timely report such individual, depending on the allocation of fault.

With respect to your second question regarding the coverage of a part-time deputy sheriff from 1970 until recent years, we find that before 1972 that a deputy sheriff was considered the employee of the Sheriff and was paid by the Sheriff from fees or other compensation of his office. (See attached Opinion dated August 18, 1980 to Honorable John E. Shaw.) As of January, 1972, deputy sheriffs were considered direct county employees and were paid from county funds. The retirement system has defined part- time as working less than one-half of the normal working load for the position and receiving less than one-half the compensation for the position. Depending on the actual time worked as a part- time deputy sheriff during the period in question, the individual may be considered to have been in a covered position if he exceeded the above, in which case he should have been reported to the System, and the County would be authorized to pay the employer contributions on compensation paid to him and any applicable interest due as a result of failure to timely report, again depending on whose fault gave rise to the failure to report. However, prior opinions of this office have stated that where the employee was an employee of a fee official and not the county, that the county may not pay the employer contributions for such period of employment and the fee official would be responsible for any such employer contributions for covered service.

Please feel free to contact this office if we can be of further service.

Sincerely,

MIKE MOORE ATTORNEY GENERAL

BY: Denise Owens-Mounger Special Assistant Attorney General