May an assistant jail administrator simultaneously hold the position of arson investigator for the county?

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

Code Section 25-4-103(f)(i)(ii), (g)(i), (h), (1) 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:

(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.

(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 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(1) and (3)(a) states:

"(1) 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.

(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."

I would like to take this opportunity to request a written opinion from your office.
The situation that we have is as follows. Our Assistant Jail Administrator would like
to hold the position of Arson Investigator for the County, in addition to his duties as
Assistant Jail Administrator. The Arson Investigator position is not a salaried
position, but he would be paid for mileage. My question is, would he ethically be allowed to hold both of these positions at the same time?

Section 83-1-39, 1972 Mississippi Code Annotated, is the state law that authorizes the county volunteer fire department fund that the State disburses to county governments for fire protection. Specifically, Code Section 83-1-39(5)(b) provides, "(5) No county shall receive payments pursuant to this section after July 1, 1988, unless such county: (b) Designates one (1) member of the sheriffs department to be the county arson investigator and requires the designated member of the sheriff's department to attend the State Fire Academy to be trained in arson investigations."

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

The Commission is of the opinion that under normal circumstances the holding of two positions by one individual, such as assistant jail administrator and county arson investigator, would result in a violation of the above cited Code Section 25-4-105(3)(a).

However, in this instance, the Commission must consider the effect of Code Section 83-1 - 39(5)(1). Code Sections 25-4-105(3)(a) and 83-1-39(5)(b) should be read inpari materia. The case law in this state consistently supports the fundamental principle of statutory construction that specific statutes control over general statutes. For example, McCory v. State, 210 So. 2d 877 (Miss. 1968) and Lincoln County v. Entrican, 230 So. 2d 801 (Miss. 1970).

Specifically, in McCaffrey's Food Market- Inc. v. Mississippi Milk Commission, 227 So.2d 459, Miss. 1969), the State Supreme Court stated, "The rule is well established that where a special and particular statute deals with a special and particular subject its particular terms as to that special subject control over the general statutes dealing with the subject generally."

Therefore, based on the above, the Commission finds that the simultaneous employment of the same individual as assistant jail administrator and as county arson investigator as anticipated and authorized in Code Section 83-1-39(5)(b) does not as such violate the conflict of interest laws.

Notwithstanding the above, the individual holding one position cannot use that position to obtain the other position. Such an action by the individual would violate the above cited Code Section 25-4-105(1).

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.

In order to avoid using their official positions to obtain a pecuniary benefit, public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests.
In this instance, the individual must not use his position as assistant jail administrator to obtain the position of county arson investigator.

Ronald E. Crowe Executive Director