This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 14, 2003, basing its approval solely on the facts and circumstances stated herein.
 

May a current member of a county planning commission be simultaneously employed by the county sheriff’s department as a part-time deputy sheriff?

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

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

(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.

(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.

Can a current member of a Planning Commission also work as a part-time deputy sheriff?

Our board attorney said that his research indicates that the Planning Commission for the County was created by statute and not by a “local & private” bill.

The Commission formally adopts Advisory Opinions No. 02-050-E and No. 96-030-E in response to this request and by attachment incorporates them into this opinion.

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

This opinion is written with the understanding that the requestor’s reference to a “planning commission” is, in fact, a reference to a planning commission created pursuant to Section 17-1-11, 1972 Mississippi Code Annotated (amended).  If this understanding is incorrect, the requestor is advised that this opinion is no longer applicable and a new request, with the correct facts, should be submitted to the Commission.

In regard to a public servant holding dual positions within the public servant’s governmental entity, the above cited Code Section 25-4-105(3)(a) prohibits such dual service, 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 an officer or employee.

As set forth in the attached advisory opinions, this Commission has already concluded that a county planning commission and the county sheriff’s department are within the same authority of county government.  This finding is based on both of them being within the general county government, as they are subject to the general budgeting and funding authority of the board of supervisors.

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 county planning commission member may be employed part-time by the county’s sheriff department as a deputy sheriff.  That rule of construction has been set forth by the Mississippi Supreme Court as follows:
 

“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 positions are with separate authorities of the governmental entity, we are of the opinion that Code Section 25-4-105(3)(a) will prohibit the county planning commission member from being employed and compensated by the county sheriff’s department as a part-time deputy sheriff.
 
 

Scott Rankin
Executive Director