This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on February 8, 1996.

May a county deputy sheriff be appointed to the office of town marshal of a municipality located within the county employing the deputy sheriff?

    The Mississippi Ethics Commission is restricted 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, Mississippi laws outside the jurisdiction of the Commission and internal rules and regulations of the governmental entities are not addressed by this opinion.

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

Code Section 25-4-101 states:

"The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the state and local governments."

Code Section 25-4-103(g)(i)(ii), (h), (1) and (p)(i)(ii)(iii) states:

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

(i) Counties; and

(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.

(1) '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 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) state:

"(I) 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.

Is it permissible for a Deputy Sheriff of the County to be appointed Town Marshal of the Town [located within the County]?

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

    The municipality's appointment of the deputy sheriff to the position of town marshal is not as such a violation of the conflict of interest laws. This is based on the fact that the county and the town are two completely separate governmental entities.

    Notwithstanding the above, the requestor is cautioned to advise the deputy sheriff to be keenly aware of Code Section 25-4-105(1), cited above, should the municipality appoint the deputy sheriff to the position of town marshal.

    Code Section 25-4-105(1) prohibits public servants from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business with which they are associated.

    Therefore should the deputy sheriff be appointed town marshal, he would be prohibited by Code Section 25-4-105(1) from using the supplies, equipment, vehicles and other resources available to him as a deputy sheriff to carry out his duties as town marshal for which he is being personally compensated. In addition, the requestor would be prohibited from simultaneously being paid as town marshall and deputy sheriff for carrying out law enforcement functions within the town.

    The issue presented by the requestor also must be viewed as it relates to Code Section 25-4-101, set forth above. This code section sets the tone for the conflict of interest laws as it is the Legislature's "Declaration of Public policy."  This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.

    Clearly, a deputy sheriff serving as town marshal for a municipality located within the county by which the deputy sheriff is employed by has the potential of creating suspicion among the public and reflecting unfavorably upon both the county and municipal governments. This is especially true considering that the county sheriff's department has concurrent jurisdiction with the police departments to provide law enforcement inside the city limits of the municipalities located within the county.
 
 

Ronald E. Crowe Executive Director