Can a Mississippi small-town police chief also work part-time for the city's water utility?

Subject

Secondary Employment for Chief of Police

Recipient

Tonya Franklin, Esq., Attorney, Town of Arcola

Plain-English summary

The Town of Arcola wanted to reduce its police chief to part-time and have him also serve as an assistant water utility maintenance worker. Two questions: is that allowed under the separation-of-powers doctrine, and how do you avoid problems if it is? The AG said the doctrine is not a barrier. A municipal police chief is an executive-branch officer, and a utility maintenance worker is also an executive-branch role, so simultaneous service does not move powers across branches. The utility job also is not a "core power" position, the kind of high-policy role that triggers more rigorous scrutiny.

The AG would not address the follow-on questions, what parameters to follow and how to apportion pay, referring those conflict-of-interest and compensation issues to the Mississippi Ethics Commission and the Office of the State Auditor. The Office did restate one rule from its past opinions: a police chief may perform a secondary public job "only during hours he is not on duty and being compensated as Chief of Police" (citing Carnathan).

What this means for you

Mayors and boards of aldermen

Under this opinion, the separation-of-powers doctrine does not bar a town's police chief from also serving as an assistant water utility maintenance worker, because both are executive-branch positions. The AG expressly deferred the related ethics and compensation questions, what parameters to follow and how to apportion pay, to the Mississippi Ethics Commission and the Office of the State Auditor.

Police chiefs offered a second town job

The opinion approves the arrangement only on separation-of-powers grounds. It also restates the rule from its Carnathan opinion that the chief "may perform his duties [of secondary public employment] only during hours he is not on duty and being compensated as Chief of Police." Conflict-of-interest questions are referred to the Ethics Commission and compensation questions to the State Auditor.

Municipal attorneys

The opinion is narrow: its scope is "limited to whether simultaneous service in two public positions violates the separation of powers doctrine." It refers conflict-of-interest and other ethical questions to the Mississippi Ethics Commission and compensation questions to the Office of the State Auditor, rather than resolving them itself.

Citizens and residents of small towns

The opinion holds that a town's police chief may also serve as an assistant water utility maintenance worker without violating separation of powers, since both are executive-branch roles and the utility job does not exercise "core powers." The AG conditions this on the chief performing the second job only while off duty as chief, and leaves ethics and pay questions to the Ethics Commission and State Auditor.

Common questions

Is being a police chief and a utility worker a "dual office holding" violation?
Not under separation of powers. Both are executive-branch positions, and the utility role does not exercise "core powers" of any branch. The AG explicitly rejected the dual-branch theory.

Why does the AG keep mentioning the Ethics Commission?
Because the AG only opines on legal questions like separation of powers, not on whether a specific arrangement creates a conflict of interest under Mississippi's ethics statutes. Conflict-of-interest determinations belong to the Mississippi Ethics Commission, which can issue its own advisory opinions.

Can the chief work the utility shift while on duty as chief?
No. The AG cited the Carnathan opinion, which holds that secondary employment of a police chief must happen during hours the chief is not on duty and not being compensated as chief.

Does it matter that the chief is the town's only law enforcement officer?
The request noted the chief is currently the town's sole law enforcement officer, but the AG's separation-of-powers analysis did not turn on that fact.

How should the town apportion the pay?
The AG declined to opine on apportioning pay and referred that question to the Mississippi Ethics Commission and the Office of the State Auditor.

Why was the utility job not a separation-of-powers problem?
Under the opinion, a person cannot hold positions in two different branches if both exercise "core powers," defined as ongoing acts in the upper level of governmental affairs with substantial policy-making character. The AG found that an assistant water utility maintenance worker does not exercise core powers, and that both the police chief and the utility role are in the executive branch, so there is no separation-of-powers violation.

Background and statutory framework

Article I, Section 1 of the Mississippi Constitution divides state government into three departments. Article I, Section 2 prohibits any person belonging to one department from exercising powers belonging to another. The Mississippi Supreme Court has narrowed that prohibition to "core powers," meaning ongoing acts of substantial policymaking character. A municipal police chief is an executive officer, and the AG has consistently treated municipal utility employees as executive-branch staff. Two executive-branch jobs do not violate separation of powers, regardless of overlap.

Past AG opinions cited here include Hudson (June 26, 2020) defining core powers, O'Reilly (May 19, 2006) classifying a municipal police chief as executive branch, Farese (Aug. 8, 1990) classifying municipal utility employment as executive branch, Fondren (Dec. 16, 2005) addressing utility employees and core powers, Carnathan (Aug. 30, 2019) holding that a chief's secondary work must be off-duty, and Garraway (Jan. 24, 1990) addressing on-call officials and part-time security work.

Citations

• Miss. Const. art. I, § 1 (powers of government divided into three departments)
• Miss. Const. art. I, § 2 (separation of powers prohibition)
• MS AG Op., Hudson (June 26, 2020) (core powers definition)
• MS AG Op., O'Reilly (May 19, 2006) (police chief as executive-branch officer)
• MS AG Op., Farese (Aug. 8, 1990) (municipal utility employment as executive branch)
• MS AG Op., Fondren (Dec. 16, 2005) (utility employee not exercising core powers)
• MS AG Op., Carnathan (Aug. 30, 2019) (police chief secondary employment off-duty rule)
• MS AG Op., Garraway (Jan. 24, 1990) (on-call official's part-time work)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/05/T.Franklin-April-26-2023-Secondary-Employment-for-Chief-of-Police.pdf

Original opinion text

April 26, 2023
Tonya Franklin, Esq.
Attorney, Town of Arcola
Post Office Box 134
Greenville, Mississippi 38702
Re:

Secondary Employment for Chief of Police

Dear Ms. Franklin:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, the town of Arcola, Mississippi (the "Town") seeks to reduce the Chief
of Police's employment to part time. Members of the board of aldermen have inquired as to
whether the Chief of Police may serve in a secondary role as an assistant water utility maintenance
worker for the Town while also serving as the Chief of Police.
Questions Presented

1. May the Chief of Police, who is currently serving as the sole law enforcement officer for
   the Town, also serve as an assistant water utility worker for the Town?
2. If the answer to question one is yes, what parameters must be followed to ensure that the
   Police Chief is serving appropriately in each role to ensure duties are not overlapping?
3. If the answer to question one is yes, how should payment be apportioned?
   Brief Response
4. This office has previously opined that there is no separation of powers violation when an
   individual simultaneously serves in two different positions within the same branch of
   government. Regarding ethical considerations, we refer you to the Mississippi Ethics
   Commission.
5. We defer to the Mississippi Ethics Commission on this question.
6. We defer to the Mississippi Ethics Commission and the Office of the State Auditor on this
   question.
   Applicable Law and Discussion
   Regarding your first question, the scope of this opinion is limited to whether simultaneous service
   in two public positions violates the separation of powers doctrine. We refer you to the Mississippi
   Ethics Commission regarding potential conflicts of interest or other ethical implications arising
   out of simultaneous service.
   Article I, Section 1, of the Mississippi Constitution of 1980 provides that "[t]he powers of the
   government of the State of Mississippi shall be divided into three distinct departments, and each
   of them confided to a separate magistracy, to-wit: those which are legislative to one, those which
   are judicial to another, and those which are executive to another." The Separation of Powers
   Doctrine states:
   No person or collection of persons, being one or belonging to one of these
   departments, shall exercise any power properly belonging to either of the others.
   The acceptance of an office in either of said departments shall, of itself, and at once,
   vacate any and all offices held by the person so accepting in either of the other
   departments.
   MISS. CONST. art. I, § 2.
   A person cannot hold positions in two different branches of government if both positions exercise
   "core powers" in that particular branch. MS AG Op., Hudson at 1 (June 26, 2020). "Core power
   has been defined by the Court to include those circumstances where the acts are ongoing and are
   in the upper level of governmental affairs and have substantial policy-making character." Id.
   (internal quotations and citations omitted). An assistant water utility maintenance worker would
   not be exercising core powers of any branch, and therefore there would be no separation of powers
   issue under your proposed circumstance. MS AG Op., Fondren at 1 (Dec. 16, 2005) (opining
   that attorney, as employee of utility, would not exercise core powers).
   Moreover, there is no separation of powers violation when an individual simultaneously serves in
   two different positions within the same branch of government. MS AG Op., O'Reilly, at 1 (May
   19, 2006). "A municipal police chief is . . . a position in the executive branch of government."
   O'Reilly at 1. "[E]mployment with a municipal utility department would be within the executive
   branch of government. . . ." MS AG Op., Farese at 1 (Aug. 8, 1990). For each of these reasons,
   the Chief of Police may also serve as an assistant water utility maintenance worker without
   violating the Separation of Powers Doctrine.
   Regarding your last two questions, this office has previously opined that "[t]he Chief of Police
   may perform his duties [of secondary public employment] only during hours he is not on duty and
   being compensated as Chief of Police." MS AG Op., Carnathan at 1 (Aug. 30, 2019); see also
   MS AG Op., Garraway at *1 (Jan. 24, 1990) ("It is the opinion of this office that an appointed
   official . . . on call twenty-four hours a day may, when not on duty, work as a security guard part-time, provided he fulfills all the duties of his office and does not violate city policy."). However,
   for topics outside the scope of this opinion, we refer you to the Mississippi Ethics Commission
   regarding any questions about conflicts of interest and to the Office of the State Auditor for further
   questions about compensation.
   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/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General