This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on June 14, 2002, basing its approval solely on the facts and circumstances stated herein.
 

May a deputy chancery clerk be employed as a part-time correction facility/sheriff department employee for the same county?

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(a), (g)(i), (h) and (p)(i)(ii)(iii) states:
 

“(a) ‘Authority’ means any component unit of a governmental entity.

(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) and (4)(h) 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.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:
 

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee.”

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

I am writing this letter to inquiry about information regarding a part-time job.  I am currently employed with the County Chancery Clerk Office in the City as a full-time Deputy Clerk.  I currently work Monday - Friday during the hours of 8 am - 5 pm each day.  The County Correction Facility and the County Sheriff Department will have part-time jobs that may become available in the next few months.  The hours are from 6 pm - 10 pm (weekdays) and 8 am - 2 pm (weekends).  I would like to apply for these jobs, but only if I would not be violating a code of ethics.

The Commission formally adopts Advisory Opinion No.  96-023-E in response to this request and by attachment incorporates it into this opinion.

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

In regard to dual employment within a public servant’s governmental entity, the above cited Code Section 25-4-105(3)(a) prohibits such dual employment unless the exception set forth in the above cited Code Section 25-4-105(4)(h) applies.

The exception in Code Section 25-4-105(4)(h) being that a public servant of a governmental entity may be employed or compensated only by an authority of the governmental entity other than the authority of the governmental entity of which the public servant is already employed.

The chancery clerk’s office and the county’s sheriff department/correctional facility are all within the general county government as they are subject to the general budgeting and funding authority of the board of supervisors. Therefore, the chancery clerk’s office and the county’s sheriff department/correctional facility are within the same authority of the county governmental entity for purposes of Code Section 25-4-105(3)(a).

The Commission applies the rule of inclusio unius est exclusio alterius to the interpretation of these statutes in answering your question as to whether a full-time deputy chancery clerk may be employed part-time by the county’s sheriff department to work at the county correction facility.

That rule of construction has been set forth by the Mississippi Supreme Court:
 

“The fundamental rule of construction that where a statute enumerates and specifies the subjects of things upon which it is to operate, it is to be construed as excluding from its effect all those not expressly mentioned, or, under a general clause, those not of the like kind or classification as those enumerated.” State Ex Rel. Whall v. Saenger Theatres Corporation, et al., 200 So.442 (Miss. 1941).

 
Since Code Section 25-4-105(4)(h) sets forth the only scenario in which a public servant of a governmental entity may be employed or compensated by the same governmental entity which is when the dual employment positions are with separate authorities of the governmental entity, we are of the opinion that a deputy chancery clerk may not be employed and compensated by the county sheriff’s department as a part-time employee with the county correctional facility.

In summary, Code Section 25-4-105(3)(a) will prohibit the requestor as a deputy chancery clerk from simultaneously holding a part-time position with the same county’s sheriff department/correctional facility as the chancery clerk’s office and sheriff’s department are considered to be within the same county authority for purposes of the conflict of interest laws.

As stated in the attached advisory opinion 96-023-E, “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.”
 
 
 

Scott Rankin
Executive Director