ADVISORY OPINION NO. 07-046-E

April 6, 2007

The Mississippi Ethics Commission issued this opinion on the date shown above in accordance with Section 25-4-17(i), Mississippi Code of 1972, as reflected upon its minutes of even date. The Commission is empowered to interpret and opine only upon Article IV, Section 109, Mississippi Constitution of 1890, and Article 3, Chapter 4, Title 25, Mississippi Code of 1972. This opinion does not interpret or offer indemnity from liability for any other laws, rules or regulations. The Commission based this opinion solely on the facts and circumstances provided by the requestor as restated herein. The indemnity provided under Section 25-4-17(i) is limited to the individual who requested this opinion and to the accuracy and completeness of these facts.

I. LAW

The pertinent Ethics in Government Laws to be considered here are as follows, to wit:

Section 25-4-103, Miss. Code of 1972.

(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.

Section 25-4-105, Miss. Code of 1972.

(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:

(j) If a constable, may be employed and receive compensation as a deputy sheriff or other employee of the county for which he serves as constable.

II. FACTS

Facts provided by the requestor are set forth below, with identifying information redacted, and are considered a part of this opinion.

I have a gentleman in my county who is employed full time as a County Road Hand for Supervisor District and is a candidate for Constable. The question has been asked, if he is elected for Constable, can he continue working as a full-time County Road Hand?

I called and spoke with Mr. Chad Montgomery today and he has advised me to write for an official opinion on this subject. We looked at the Advisory Opinion No. 06-012-E which was concerning a part-time county employee being appointed constable to fill a vacancy. I am interpreting the MS Code Section 25-4-105(4)(j) as allowing him to do both.

III. ANALYSIS

Section 25-4-105(3)(a), Miss. Code of 1972, prohibits a county official from also being a contractor to the county. Employees are normally contractors for purposes of the Ethics in Government Laws. However, the exception codified in Section 25-4-105(4)(j) allows a constable to be simultaneously employed by the county in another position. Therefore, the individual in question may serve as constable while remaining an employee of the county. Nevertheless, a full time county employee may not perform work as constable during times when he is performing his duties as a full time county employee.

MISSISSIPPI ETHICS COMMISSION


BY: Tom Hood, Executive Director and
Chief Counsel