May a constable act as and be compensated as the arson investigator for the county that he was elected to serve as constable?Your opinion request to the Office of the Attorney General dated October 23, 1996, was referred by that Office to the Mississippi Ethics Commission on October 25, 1996, as your request involves the above issue that concerns the Mississippi conflict of interest laws.
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.
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.(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
Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.(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."
Would it pose a conflict of interest for a duly elected constable to act and be compensated as fire investigator for the county which he was elected constable?The Commission formally adopts Advisory Opinion No. 95-121-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.
Section 83-1-39(5)(p), 1972 Mississippi Code Annotated, requires a county designate one (1) member of the sheriffs department to be the county arson investigator and requires the designated member of the sheriff's department attend the State Fire Academy before the county shall receive its state fire rebate funds.
Therefore, the state's conflict of interest laws views
the arson (fire) investigator position in the same manner as the deputy
sheriff position which was the subject of the attached opinion.
The Commission finds that the arson (fire) investigator's
employment with the sheriff's department while he is simultaneously serving
as the county's constable does violate the above cited Code Section 25-4-105(3)(a).
As stated in the attached advisory opinion, "The interpretation of Code Section 25-4-105(3)(a) is that a public servant may hold only one position with the authority of the governmental entity of which he or she is a member, officer, employee or agent."
However, one Circuit Court district has interpreted Code Section 25-4-105(3)(a) as not prohibiting a constable from being employed as a deputy sheriff for the county he or she serves as constable. This decision was not a direct challenge of the Commission's opinions and the Commission was not a party to this action.1
In addition, certain actions are currently pending within different Circuit Court districts directly challenging the Commission's opinions interpreting Code Section 25-4-105(3)(a) in which the Commission is a party.2
Ronald E. Crowe Executive Director
1See Cooley vs. Rollins, The Circuit Court of Adams County, Mississippi, No. 7323-J
2See Lindsey vs. Oktibbeha County Board of Supervisors et al., The Circuit Court of OkLibbeha County, Mississippi, No.96-0028
See McDaniel vs. Attala County Board of Supervisors~ et p1., The Circuit Court of Attala County, Mississippi, No. 96-0044-L
See Robertson vs. Attala County Board of Supervisors et al., The Circuit Court of Attala County, Mississippi, No. 96-0045-M
See Gurley, et al. vs. Monroe County Board of Supervisor et al., The Circuit Court of Monroe County, Mississippi, No.CV96-156-RM