1. May a constable serve as a county deputy sheriff and be compensated by the county as a constable?

2. May a constable serve as a county deputy sheriff and as a bailiff to the justice court and be compensated by the county as a 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 entity's internal rules and regulations.

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

Code Section 25-4-103(g)(i), (h) 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.

(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) and (6) 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.

(6) Any contract made in violation of this section may be declared void by the governing body of the contracting or selling authority of the governmental subdivision or a court of competent jurisdiction and the contractor or subcontractor shall retain or receive only the reasonable value, with no increment for profit or commission, of the property or the services furnished prior to the date of receiving notice that the contract has been voided."

Code Section 25-4-107 states:

"(1) Any complaint for a violation of this article shall be brought in the circuit court of the county in which the violation occurred; provided, however, that upon the motion of the defendant such action shall be removed to the county in which the defendant resides. Any such complaint may be initiated only by the Mississippi Ethics Commission or the district attorney of the county in which the violation occurred.

(2) The defendant in any trial for a violation of this article shall have the right to a trial by jury; provided, however, that such defendant may, upon proper motion, waive his right to a trial by jury. A unanimous verdict of the jury shall be required for a finding of a violation of this article."

Code Section 25-4-109 states:

"(1) Upon a finding by clear and convincing evidence that any elected public servant or other person has violated any provision of this article, a circuit court of competent jurisdiction may censure the elected public servant or remove the elected public servant from office or impose a civil fine of not more than five thousand dollars ($5,000.00) or both.

(2) Upon a finding by clear and convincing evidence that any nonelected public servant has violated any provision of this article, a circuit court of competent jurisdiction may censure, remove, suspend, or order a reduction in pay or demotion of the nonelected public servant or impose a civil fine of not more than five thousand dollars ($5,000.00) or both."

Code Section 25-4-113 states:

"The attorney general of the state of Mississippi or any governmental entity directly injured by a violation of this act may bring a separate civil action against the public servant or other person or business violating the provisions of this article for recovery of damages suffered as a result of such violation. Further, any pecuniary benefit received by or given by a public servant in violation of this article shall be declared forfeited by a circuit court of competent jurisdiction for the benefit of the governmental entity injured. In the discretion of the court, any judgement for damages or forfeiture of pecuniary benefit may include costs of court and reasonable attorney's fees."

Code Section 25-4-115 states:

"This article shall not bar, suspend or otherwise restrict any right or liability to damage, penalty, forfeiture, restitution or other remedy authorized by law to be recovered or enforced in a civil action, regardless of whether the conduct involved in the proceeding constituted an offense covered by this article."

Code Section 25-4-117 states:

"The provisions of this article shall be in addition to any criminal laws. Actions taken under the provisions of this article shall not bar prosecution for violations of the criminal law."
 

The Commission formally adopts Advisory Opinions No. 95-121-E and No. 96-003-E in response to this request and by attachment incorporates them into this opinion.

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

In response to the requestor's specific question, a constable is an elected officer of the county government compensated under a statutory fee system. Therefore, the conflict of interest laws do not prohibit a constable from being paid his or her statutorily authorized fees.¹

The Commission is of the opinion that a constable, or other duly elected officer of the general county government, is prohibited by Code Section 25-4-105(3)(a), cited above, from serving as an employee of the general county government, such as a deputy sheriff 2

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.3

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.4

The remedies available to a circuit court of competent jurisdiction for violations of Code Section 25-4-105(3)(a) as authorized by the Code Section 254-107, cited above, are censure or removal, a civil fine and/or forfeiture of any pecuniary benefit received by the public servant as
 

¹See §25-7-27, Mississippi Code Annotated of 1972 (amended)

2See attached Official Advisory Opinions No. 95-121-E and No. 96-003-E

³See Cooley vs. Rollins, The Circuit Court of Adams County, Mississippi, No. 7323-J

⁴See Lindsey vs. Oktibbeha County Board of Supervisors et al., The Circuit Court of Oktibbeha County, Mississippi, No.96-0028

See McDaniel vs. Attala County Board of Supervisors et al., 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 Supervisorr et al., The Circuit Court of Monroe County, Mississippi, No.CV96-156-RM

allowed respectively by the above cited Code Section 25-4-109 and Code Section 25-4-113.

Such an action would be for forfeiture of the salaries the public servant received under any void employment contract with his or her governmental entity and for censure or removal and a civil fine as determined by a circuit court of competent jurisdiction.

Code Section 25-4-105(6), cited above, provides that any contract made in violation of [Code Section 25-4-105] may be declared void by the governing body of the contracting governmental subdivision or a court of competent jurisdiction. Further, Code Section 25-4-113, cited above, provides that the attorney general of the state of Mississippi or any governmental entity directly injured by a violation of this act [i.e. the Ethics in Government Act] may bring a separate civil action against the public servant or other person or business violating the provisions of this article for recovery of damages suffered as a result of such violation. [Emphasis added]

Whether any other person or persons could be held liable for payments made under a contract later declared void by a court of competent jurisdiction under the Ethics in Government Act cannot be answered by this opinion. However, the requestor is advised that Code Section 25-4-115 and Code Section 25-4-117, both cited above, respectively provide that the Ethics in Government Act shall not bar or restrict any civil action for damages, penalty, forfeiture, restitution or other remedy authorized by law or bar any prosecution for violations of the criminal law.

Ronald E. Crowe Executive Director