Mec 1996 April Adv Opi no 96-044-E

OFFICIAL ADVISORY OPINION NO. 96-044-E April 5, 1996

This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on April 5, 1996, basing its approval solely on the facts and circumstances stated herein.

May a municipality use its maintenance employee as a police officer?

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.

In regard to the law enforcement training requirements and the liability questions, these are areas outside the Commission's jurisdiction and therefore are not addressed in our opinion. However, you are advised to contact the Department of Public Safety's Board of Law Enforcement, Officers Standards and Training and the Office of the Attorney General concerning your training and liability questions.

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

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

"(f) 'Contract' means:

(i) Any agreement to which the government is a party; or

(ii) Any agreement on behalf of the government which involves the payment of public funds.

(g) 'Governmental' means the state and all political entities thereof; both collectively

and separately, including but not limited to:

(ii) Municipalities.

(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) 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."

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

I would like to request an official advisory opinion on this particular situation:

The Town is considering using their maintenance man for a day-time policeman in addition to his regular job. He would be in the town truck, but have a blue light to
set on the dash and have a radio to call for help if needed. As maintenance man, he receives pay once a week. Could he be paid for both duties or under only one contract? Also, what kind of schooling would he have to get? The town is insured by the Mississippi Municipal Service Company. Will this violate any employment laws and what are the potential liabilities? Would he be allowed to carry a firearm?

The Commission formally adopts Advisory Opinion No. 95-062-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.

As stated in the attached opinion, Code Section 25-4-105(3)(a), cited above, prohibits a governmental entity, including a municipality, from contracting with its employee, either as an independent contractor or in another distinct employment position.

However, the attached opinion also provides that the conflict of interest laws do not prohibit public servants from performing the appropriate duties of their employment position for any department of the employing governmental entity.

The proper procedures in assigning the duties of a public servant between departments and the applicable funds to be used to compensate the public servant performing the assigned duties between departments are appropriate subjects for an Attorney General's opinion.

Some of the circumstances to be considered in determining whether an employee is performing multiple duties or is employed in separate distinct employment positions are the number of contracts, written or verbal; the number of payroll checks issued; the type of time reporting documents required; and overtime regulations.

Ronald E. Crowe Executive Director