This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on March 3, 2000, basing its approval solely on the facts and circumstances stated herein.

May a constable be paid by the Department of Human Services to serve a summons?

State law restricts the Mississippi Ethics Commission 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, this opinion does not address the Mississippi laws outside the Commission's jurisdiction nor the governmental entity's internal rules and regulations.

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

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

"(e) 'Compensation' mean money or thing of value received, or to be received, from any person for services rendered.

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

(i) Counties; and

(v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.

(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 or in part out of funds authorized to be expended by the government."

Code Section 25-4-105(1) 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."

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

In November 1999, I was elected to serve the County as one of their Constables. My official job began January 1, 2000.
 
 
 
 
 
 

As Constable, I know that one of my services will be to serve summons and subpoenas for our county. It has, however, been brought to my attention, that I may possibly be allowed to serve summons for the Department of Human Services. I would very much like to help this department of the state along with helping myself, if this is legally allowed.

I would appreciate you looking into this matter for me. After contacting our elected officials, members of the Auditing Department, members of DHS and the Attorney General's Office, I have been advised to contact your office of Ethics.

Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.

Code Section 25-4-105(1), cited above, prohibits a constable from using his official position to obtain a pecuniary benefit for himself other than that compensation provided for by law.

A constable is allowed only those fees authorized by state law and can be paid only in the manner set forth in state law.⁽¹⁾

The requestor has provided no references to any state law that allows the Department of Human Services to pay a constable for serving a summons. Further, the Commission believes that if such an authority did exist the State Attorney General's Office or the Office of the State Auditor would have advised the requestor of same instead of referring the requestor to the Commission.

Therefore, Code Section 25-4-105(1) absolutely prohibits the requestor from being paid by the Department of Human Services to serve summons as a constable unless and until such time as specific statutory authority exists to allow same. [Emphasis added to bold text]
 
 
 
 
 
 
 
 
 
 

Specifically, a constable may not use his official authority, public equipment and/or any other public resources available to the constable through his official position to act as a private process server as such an action by a constable will be a use of his official position to obtain compensation other than that provided for by law which clearly violates Code Section 25-4-105(1).⁽²⁾
 
 
 
 
 
 
 
 

Ronald E. Crowe

Executive Director

1. §25-7-27 - General authority for constable fees; §63-17-97 - Execution of summons by constable for Mississippi Motor Vehicle Commission; §75-49-13 - Execution of summons by constable for Insurance Commissioner for mobile home licensing hearing; §81-1-85 constable serving subpoenas for Department of Banking and Consumer Finance examinations.

§9-11-18 - Constable fees to be reported to court clerk and paid into court clerk's clearing account and to be disbursed monthly by the clerk of the board of supervisors upon approval by the board of supervisors.

2. Attorney General's Opinion No. 93-0483, Walters, August 11, 1993 - A duly elected constable may not receive compensation for service of process in Justice Courts, except the fee provided in section 25-7-27. As to other courts, under Rule 4 of MRCP a constable, like any other individual above the age of 18 who is not a party to the lawsuit, may receive compensation for service of process as a private process server. However, if a constable does serve process in other courts, then that constable must file the same affidavit of return that other private process servers file and not the unsworn return of the constable.