Can a Mississippi county sell a sidearm to a constable who didn't run for reelection and wasn't vested in PERS?

Plain-English summary

A Noxubee County constable did not run for reelection. During his time in office, he contributed to PERS (Public Employees' Retirement System) but did not have enough service credit to vest. He also did not serve 10 continuous years as a county law enforcement officer. He asked the county supervisors to sell him the sidearm he carried while in office.

The county attorney asked the AG: can we sell him the sidearm under Section 45-9-131?

The AG said no. Section 45-9-131(1) lays out the requirements:

Upon approval of the governing authority of the municipality or county, a member of any municipal or county law enforcement agency who retires under any state retirement system or leaves such employment after being employed for ten (10) continuous years of service may be allowed to purchase, as his or her personal property, one (1) sidearm which was issued to the law enforcement officer by the law enforcement agency from which he or she retired or by whom he or she was employed at the time of death.

Two paths to qualification: (a) retire under a state retirement system, or (b) leave after 10 continuous years of service. The constable here qualifies for neither.

• He contributed to PERS but did not vest. So he did not "retire under any state retirement system" because he was not eligible to retire and draw benefits.
• He served fewer than 10 continuous years.

Without one of the two paths, the statute does not authorize the sale. The 2019 Hollingsworth AG opinion already established that a resigning officer who has not retired does not qualify under Section 45-9-131; this opinion extends that logic to a non-vested officer leaving office at the end of a term.

The opinion does provide an alternative path. If the county determines and declares that the sidearm is surplus county personal property, the county may dispose of the sidearm under Section 17-25-25, the general surplus-property disposal statute for counties. The opinion does not describe the surplus procedure in detail or address what price the sidearm would carry.

The AG also flagged a side issue: the Ethics Commission. Selling county property to a former officeholder, even at fair market value, can raise public-officer ethical questions, and the county should consult the Ethics Commission before completing any such sale.

What this means for you

County supervisors and county attorneys

The opinion holds that Section 45-9-131 authorizes a privileged purchase only for an officer who retired under a state retirement system or who left after ten continuous years of service. Because the constable did neither, the county is not authorized to sell him the sidearm under that statute. The opinion identifies one alternative: if the county determines and declares the sidearm to be surplus county personal property, it may dispose of it under Section 17-25-25. The AG added that the county may wish to consult the Ethics Commission about any ethical implications.

Constables and officers leaving without retirement or ten years' service

For an officer in the constable's position (contributed to PERS but did not vest, and served fewer than ten continuous years), the opinion concludes Section 45-9-131 does not authorize the agency to sell the service sidearm. The opinion does not describe what the officer should do instead, beyond noting the county's option to declare the firearm surplus under Section 17-25-25.

Sheriffs and police chiefs

The opinion notes the statute operates only "upon approval of the governing authority," so even a qualifying officer has no unilateral right to buy an issued sidearm. The opinion addresses only statutory eligibility, not broader agency firearm policy.

Common questions

Did the constable qualify to buy his sidearm?
No. The opinion holds that because he did not retire under a state retirement system (he contributed to PERS but did not vest) and did not serve ten continuous years, he did not qualify as a retired law enforcement officer under Section 45-9-131, so the county could not sell him the sidearm under that statute.

Is there any other way the county could sell the sidearm?
Yes. The opinion says that if the county determines and declares the sidearm to be surplus county personal property, it may dispose of it under Section 17-25-25.

Does it matter that he left office rather than retired?
Yes. The opinion relies on the 2019 Hollingsworth opinion, which held that the Section 45-9-131 authority is limited to retiring officers and does not apply to a resigning officer, and applies the same logic to a constable who finished his term without vesting.

What about the price of the sidearm?
The request asked whether the price was solely in the county's discretion under Section 45-9-131(4). The opinion holds that question moot, because Section 45-9-131 does not allow the sale in the first place.

Why did the AG mention the Ethics Commission?
The opinion suggested the county may wish to consult the Ethics Commission about any potential ethical implications of the transaction. It did not elaborate.

Background and statutory framework

Section 45-9-131(1):

Upon approval of the governing authority of the municipality or county, a member of any municipal or county law enforcement agency who retires under any state retirement system or leaves such employment after being employed for ten (10) continuous years of service may be allowed to purchase, as his or her personal property, one (1) sidearm which was issued to the law enforcement officer by the law enforcement agency from which he or she retired or by whom he or she was employed at the time of death.

The statute creates a privileged-purchase right for retiring officers and 10-year veterans, but only "Upon approval of the governing authority." So even officers who qualify do not have a unilateral right; the county or municipality has to approve.

Subsection (4), referenced in the request, concerns the price the county may charge. Because the constable does not qualify under subsection (1), the opinion holds the subsection (4) question moot.

Section 17-25-25 is the county surplus-property disposal authority the opinion points to as the alternative: if the county determines and declares the sidearm to be surplus county personal property, it may dispose of it under that statute.

The 2019 Hollingsworth opinion is the precedent the AG cited: a resigning police officer, rather than a retiring one, did not qualify under Section 45-9-131. The 2024 opinion applies the same logic to a constable who finished his term without vesting and did not seek reelection.

Citations

• Miss. Code Ann. § 45-9-131
• Miss. Code Ann. § 45-9-131(1)
• Miss. Code Ann. § 45-9-131(4)
• Miss. Code Ann. § 17-25-25
• MS AG Op., Hollingsworth (Oct. 11, 2019)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/06/C.Hemphill-May-29-2024-Purchase-of-Sidearm-by-Constable.pdf

Original opinion text

May 29, 2024
Christopher D. Hemphill, Esq.
Attorney, Noxubee County Board of Supervisors
214 5th Street South
Columbus, Mississippi 39701
Re: Purchase of Sidearm by Constable

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

Background
You provide in your request that one of the Noxubee County ("County") constables did not run for reelection. During his time as constable, he contributed to the Public Employees' Retirement System ("PERS"), but he ultimately did not have sufficient years to be vested in PERS and was therefore unable to retire under the system. In a subsequent phone conversation with you, we learned that the constable did not work as a law enforcement officer for the county for ten continuous years. He has requested that the board of supervisors sell him his sidearm.

Questions Presented

1. Since the constable was not vested in PERS, does he qualify as a retired member of a county law enforcement agency under Mississippi Code Annotated Section 45-9-131?
2. May the County legally sell him the sidearm that he carried?
3. If the answer to question two is "yes," is the fair market value of the sidearm solely in the discretion of the County pursuant to Section 45-9-131(4)?

Brief Response

1. Because the constable was not vested and did not retire under a state retirement system, he would not qualify as a retired law enforcement officer under Section 45-9-131.
2. Because the constable would not qualify as a retired law enforcement officer under Section 45-9-131 and did not serve ten continuous years, the County would not be authorized to sell him his sidearm. However, if the County determines and declares that the sidearm is surplus county personal property, the County may dispose of the sidearm in accordance with Section 17-25-25.
3. Because Section 45-9-131 does not allow the County to sell the constable his sidearm, your third question is rendered moot.

Applicable Law and Discussion
Section 45-9-131(1) provides that:

Upon approval of the governing authority of the municipality or county, a member of any municipal or county law enforcement agency who retires under any state retirement system or leaves such employment after being employed for ten (10) continuous years of service may be allowed to purchase, as his or her personal property, one (1) sidearm which was issued to the law enforcement officer by the law enforcement agency from which he or she retired or by whom he or she was employed at the time of death.

The statute clearly requires the member of the law enforcement agency to have retired under a state retirement system unless he or she has served ten continuous years. When previously asked whether Section 45-9-131 would allow a resigning police officer, rather than a retiring police officer, to purchase his sidearm, we said that the authority in Section 45-9-131 is limited to retiring law enforcement officers and does not apply to a resigning officer. See MS AG Op., Hollingsworth at *1 (Oct. 11, 2019). Under the now-amended language of Section 45-9-131(1), if the constable did not retire under any state retirement system, he would not qualify as a retired member of a county law enforcement agency, and since he did not serve ten continuous years, the board of supervisors would not be able to sell him his sidearm. Alternatively, however, if the County determines and declares that the sidearm is surplus county personal property, the County may dispose of the sidearm in accordance with Section 17-25-25. See Hollingsworth, supra (internal citations omitted). You may wish to consult the Ethics Commission pertaining to any potential ethical implications.

Because Section 45-9-131 does not allow the County to sell the constable his sidearm, your third question is rendered moot.

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/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General