Can a Mississippi sheriff also draw separate pay for running the county's FEMA Safe Room?

Plain-English summary

Rankin County's attorney asked whether a sitting sheriff could simultaneously work for and be paid by the county's emergency operations department for running the FEMA Safe Room. Two pieces: (1) does Mississippi's sheriff salary cap in § 25-3-25 stop the second paycheck, and (2) is the dual role a separation-of-powers problem?

The AG: no on both counts.

Salary cap. § 25-3-25 sets the sheriff's annual salary "as full compensation for their services" and ties the amount to county population. The 2007 Horhn opinion said elected officials may have other employment that is not incompatible with their duties. The 2007 Lee opinion specifically allowed simultaneous service as sheriff and elected municipal police chief, with separate pay for each. The salary cap statute regulates pay for being sheriff, not for taking a second job. The AG declined to rule on whether the FEMA Safe Room work itself is compatible with sheriff duties; that is a factual call.

Separation of powers. Article 1 §§ 1-2 of the Mississippi Constitution prohibits an individual in one branch from serving in another. The AG identified both positions as executive: the sheriff is executive (Winter, 2014), and a § 33-15-17 local emergency management division is executive (Horne, 2007). Same branch, no separation problem.

The AG closed with two practical pointers. The Mississippi Ethics Commission can speak to potential conflicts of interest in the dual role. The federal Hatch Act, 5 U.S.C. § 1501 et seq., may restrict political activity (including candidacy for partisan office) of state or local executive employees who work on programs financed by federal loans or grants. Since FEMA Safe Rooms involve federal funds, the sheriff should consult the U.S. Office of Special Counsel on Hatch Act applicability.

What this means for you

If you are a sitting Mississippi sheriff considering a second county job

Under the opinion, the § 25-3-25 salary cap applies only to your pay for serving as sheriff, so it does not reach a separate paycheck for separate work. The opinion expressly offered no opinion on whether the second job is compatible with the duties of sheriff. On separation of powers, the opinion holds there is no violation where both positions are in the executive branch (the opinion treated the local emergency management role and the sheriff's office as both executive).

If you serve on a Mississippi county board of supervisors

The opinion holds that a sheriff may simultaneously be employed by the county emergency operations department without violating separation of powers, because both are in the executive branch. The AG referred questions about conflicts of interest to the Mississippi Ethics Commission, and noted the Hatch Act may apply because the program is financed in whole or part by federal loans or grants.

If you are the sheriff considering a Hatch Act risk

The Hatch Act can prohibit candidacy for partisan office while holding a covered position. For a sheriff (an elected partisan office), this matters. The 2014 Winter opinion describes the sheriff as executive-branch; combined with federally funded duties, that may bring the Hatch Act into play. Talk to the U.S. Office of Special Counsel before assuming you can run for re-election as sheriff while drawing FEMA-related pay.

If you are a county emergency management director

The opinion treats a local emergency management organization established under § 33-15-17 as part of the executive branch (citing the Horne opinion), and on that basis finds no separation-of-powers bar to a sheriff also being employed by the county emergency operations department.

Common questions

Q: How much can a Mississippi sheriff earn?
A: § 25-3-25 sets the annual salary based on county population. The amount is "full compensation" for sheriff duties. Separate jobs are separately compensated.

Q: Does this rule apply to other elected county officials?
A: The Horhn (2007) and Lee (2007) opinions establish a general rule that elected officials can hold other employment if not incompatible. The same logic should apply to other elected county officials, but each office's enabling statute should be checked.

Q: Did the AG decide whether the second job is compatible with being sheriff?
A: No. The opinion expressly states, "We offer no opinion on whether working for the county emergency operation's department would be compatible with the duties of sheriff." It resolved only the salary-cap and separation-of-powers questions.

Q: What about ethics commission concerns?
A: The AG referred questions about potential conflicts of interest or other ethical implications to the Mississippi Ethics Commission, rather than addressing them in the opinion.

Q: Can the sheriff be paid above the cap from a non-county source?
A: § 25-3-25 sets the cap on sheriff pay, which means the county's pay for sheriff duties. Pay from a different paying entity for different work is outside the cap. The Slay opinion confirms this for a county-paid second role.

Background and statutory framework

§ 25-3-25 caps sheriff pay based on population. The cap reflects a legislative judgment about appropriate compensation for the office, calibrated to county size. The AG has consistently read the cap as office-specific, not as a per-individual income limit.

The opinion draws on two strands: the rule that, except where expressly prohibited, an elected official may hold other employment "that is not incompatible with the duties of the elected office" (Horhn; Lee), and the constitutional rule that an individual in one branch may not serve in another (Art. 1 §§ 1-2). The opinion did not decide whether the particular second job here was compatible with the sheriff's duties.

For separation of powers, Article 1 §§ 1-2 distributes governmental power across executive, legislative, and judicial branches and forbids an individual in one branch from serving in another. Counties are local governments under the executive branch; their elected officials and most employees are executive-branch actors.

The Hatch Act overlay applies to certain state and local executive employees working on federally funded programs. The AG suggests independent consultation on Hatch Act questions.

Citations

• Miss. Const. Art. 1, §§ 1-2 (separation of powers)
• Miss. Code Ann. § 25-3-25 (sheriff salary cap)
• Miss. Code Ann. § 33-15-17 (local emergency management organization)
• 5 U.S.C. § 1501 et seq. (federal Hatch Act)
• MS AG Op., Horhn (Dec. 7, 2007) (elected officials may hold compatible second employment)
• MS AG Op., Lee (Dec. 14, 2007) (sheriff and elected police chief, separate pay)
• MS AG Op., Horne (Aug. 1, 2007) (local emergency management division is executive branch)
• MS AG Op., Winter (Aug. 8, 2014) (sheriff is executive branch)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/11/C.Slay-November-28-2022-Additional-Employment-for-Sheriffs.pdf

Original opinion text

November 28, 2022
Craig Slay, Esq.
Attorney, Rankin County Board of Supervisors
211 E. Government Street, Suite A
Brandon, Mississippi 39042
Re:

Additional Employment for Sheriffs

Dear Mr. Slay:
The Office of the Attorney General has received your request for an official opinion.

Questions Presented

1. Is the salary cap for sheriffs, set forth in Mississippi Code Annotated Section 25-3-25,
   applicable only to the salary earned by an individual for performing his or her duties as
   sheriff, so that an individual serving as sheriff may be paid above the statutory cap for
   overseeing the FEMA Safe Room and performing work outside his or her sheriff's duties?
2. Would an individual's simultaneous employment as the sheriff of a county and
   administrator of the county's FEMA Safe Room —a position within the county's
   emergency operations department— comport with Mississippi's separation of powers
   doctrine?

Brief Response

1. The salary cap in Section 25-3-25 applies only to an individual's role as sheriff. If a sheriff
   has separate employment in addition to his or her role as sheriff, the salary cap in Section
   25-3-25 would not apply to the compensation for his or her second job.
2. A sheriff simultaneously working for the county emergency operations department would
   not violate the separation of powers doctrine because both positions are within the
   executive branch of government.

Applicable Law and Discussion
This office has previously opined that "[e]xcept where expressly prohibited, there is no prohibition
against an elected official having other employment that is not incompatible with the duties of the
elected office." MS AG Op., Horhn at 2 (Dec. 7, 2007). An individual may simultaneously serve
as sheriff and be employed in a separate position. Id. Pursuant to Section 25-3-25, the annual salary
for sheriffs is "fixed as full compensation for their services" and set based upon the population of
the county. When asked whether an individual could simultaneously serve as sheriff of a county
and as the elected municipal police chief, we opined that he could receive a salary for each office
or position. MS AG Op., Lee at 1 (Dec. 14, 2007). We further opined that because the sheriff's
salary is set by statute, it could "not be reduced below the minimum required in that section." Id.
Thus, in response to your first question, it is the opinion of this office that the salary cap in Section
25-3-25 applies only to an individual's service as sheriff and would not apply to the compensation
for separate employment. We offer no opinion on whether working for the county emergency
operation's department would be compatible with the duties of sheriff.
With respect to your second question, the separation of powers doctrine prohibits an individual in
one branch of government from simultaneously serving in another branch of government. Miss.
Const. Art. 1 §§ 1-2. Based on a later conversation with you, we understand that the county
emergency operations department you reference in your request is a local organization for
emergency management established in accordance with Section 33-15-17. This office has
previously opined that the local emergency management division is within the executive branch
of government. MS AG Op., Horne at 1 (Aug. 1, 2007). A sheriff also serves within the executive
branch of government. MS AG Op., Winter at 1 (Aug. 8, 2014). Accordingly, it is the opinion of
this office that there is no violation of the separation of powers doctrine for an individual to
simultaneously serve as sheriff and be employed by the county emergency operations department
as both are within the executive branch of government.
We refer you to the Mississippi Ethics Commission regarding any potential conflicts of interest or
other ethical implications arising from the situation you describe in your request. Additionally,
because the Hatch Act, 5 U.S.C. 1501 et. seq., may restrict the political activity of individuals
employed by state or local executive agencies who work in connection with programs financed in
whole or in part by federal loans or grants, including prohibiting candidacy for partisan office, you
may wish to consult with the U.S. Office of Special Counsel for questions regarding the
applicability of the Hatch Act.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General