May an individual elected constable serve as a bailiff for the county in which he was elected to serve as constable?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 entities' internal rules and regulations.
The pertinent conflict of interest laws to be considered here are:
"(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;Code Section 25-4-105(1) and (3)(a) states:(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.""(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:
Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.(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."
As attorney for the County Board of Supervisors, I would submit to your office the following question:
May an individual elected constable serve as a bailiff for the county in which he was elected to serve as constable?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 with the same governmental entity by one individual, such as constable and bailiff; would result in a violation of the above cited Code Section 25-4-105(3)(a). This is based on the fact that the constable as an officer of the county would also have an employment contract as a bailiff with the county.
However, in this instance, the Commission must consider
the effect of Section 25-7-27, 1972 Mississippi Code Annotated. Code Section
25-7-27(1)(e) states, "(1) Marshals and constables shall
charge the following fees: (e) For service as a bailiff
in any court in a civil case, to be paid by the county on allowance of
the court on issuance of a warrant therefor, an amount equal to the per
diem compensation provided under Section 25-3-69 for each day, or part
thereof, for which he serves as bailiff when the court is in session."
[Emphasis added]
Code Sections 25-4-105(3)(a) and 25-7-27(1)(e) 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, the Commission finds that the simultaneous employment of a constable as a bailiff for the county that he was elected to serve as constable as anticipated and authorized in Code Section 25-7-27(1)(e) does not as such violate the conflict of interest laws.
Notwithstanding the above, the constable may not use that position to obtain his employment as a bailiff Such an action by the constable 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.
The constable should totally and completely recuse himself by avoiding discussions with the sheriff and/or the appropriate judges on the question of appointment of bailiffs for the County's courts. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.
Ronald E. Crowe Executive Director