Can a Mississippi Parole Board member get travel reimbursement without violating the per diem ban that applied to Board members in 2021?
Plain-English summary
A Mississippi Parole Board member submitted expense vouchers for actual travel costs (mileage, meals, lodging) under the standard state reimbursement statute (§ 25-3-41). The Board member was concerned: § 47-7-5(2) said Parole Board members "shall not receive compensation or per diem in addition to [their] salary," with reference to § 25-3-38. Did receiving travel reimbursements amount to receiving prohibited per diem pay?
The AG's answer was no. Reimbursements and per diem are different things:
- Reimbursement under § 25-3-41 covers actual costs of mileage, meals, and lodging, calculated based on actual expenses incurred.
- Per diem under § 25-3-69 is a flat daily fee ($40/day under that section), paid as compensation regardless of actual expenses.
The same statute (§ 47-7-5(2)) that prohibited per diem also expressly authorized travel reimbursement, so the legislature clearly distinguished the two. The AG concluded that submitting expense vouchers for actual costs did not violate the per diem ban.
A footnote in the opinion noted that the prohibition on per diem for Parole Board members was being repealed: S.B. 2795 (2021 Regular Session) amended § 47-7-5(2) to remove the prohibition effective July 1, 2021, after which Board members could receive per diem in addition to salary. So the practical importance of the question was about to diminish, but the analysis remained relevant for any pre-July 2021 reimbursement issues.
Currency note
This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
What the opinion said for each audience, at the time
For Mississippi Parole Board members in 2021
The opinion confirmed that travel reimbursements were lawful and were not the prohibited per diem. Members traveling for board meetings, hearings, or facility visits could submit vouchers for actual mileage, meals, and lodging without violating any compensation cap. The Department of Finance and Administration's State Travel Policy controlled the rules and rates for reimbursable expenses.
After July 1, 2021, with the S.B. 2795 amendment, even per diem became allowed in addition to salary. So both reimbursements and per diem were available going forward.
For state finance officials processing Parole Board expenses
In 2021, the existence of the per diem ban (which was about to expire) created a careful-reading task: was the voucher seeking actual-cost reimbursement (allowed) or daily-rate per diem (prohibited until July 1)? The opinion provided a clean basis to approve actual-cost reimbursements under § 25-3-41. After July 1, 2021, both were permissible.
For other state boards and commissions with similar prohibitions
Other state boards have similar "no per diem in addition to salary" provisions. The 2021 Smith opinion's distinction between reimbursement and per diem applies broadly: reimbursement of actual expenses is not per diem and is generally allowed even under such bans.
For taxpayers and oversight committees
The 2021 framework prevented Parole Board members from getting both their salary and additional flat-rate per diem. They got salary plus reimbursement for actual costs, no double-pay. The S.B. 2795 amendment changed that going forward, allowing per diem on top of salary. Whether that was sound policy was for the legislature, not the AG.
Common questions
Q: What's the difference between per diem and reimbursement?
A: Per diem is a flat daily fee ($40/day under § 25-3-69), paid regardless of actual expenses. Reimbursement under § 25-3-41 is payment for actual costs (mileage at the IRS rate, lodging at receipt amounts up to caps, meals at receipt amounts or daily caps), based on documentation of what was actually spent.
Q: What did Section 47-7-5(2) require Parole Board members to do?
A: Devote full time to the duties of the office, not engage in any other business or profession or hold any other public office, keep the same hours and workdays as full-time state employees, and (in 2021) not receive compensation or per diem in addition to salary. The provision was amended in 2021 to remove the per-diem ban.
Q: Why did the legislature change the rule in 2021?
A: The opinion did not explain. S.B. 2795 of the 2021 Regular Session amended § 47-7-5(2) to remove the per-diem ban effective July 1, 2021. Whether this was driven by recruitment concerns, equity with other boards, or some other reason was a legislative choice.
Q: Could the AG opine on past actions?
A: No. Section 7-5-25 limits AG opinions to prospective questions of law. The AG explicitly noted that opinions of the office "do not validate nor invalidate past actions." So if a Parole Board member had been receiving payments before this opinion that someone questioned as per diem, the AG could not retroactively approve or disapprove those payments.
Q: What rules govern actual reimbursement amounts?
A: The Department of Finance and Administration promulgates the State Travel Policy Rules & Regulations. Those rules set rates and require documentation. Disputes about specific reimbursement claims are factual questions for "the entity head or authorized designee," not for the AG.
Q: Did this affect other parts of Parole Board members' compensation?
A: The opinion only addressed the per-diem-versus-reimbursement question. The salary structure for Parole Board members under § 25-3-38 (and any other state-employee compensation rules) was unchanged.
Background and statutory framework
Mississippi's Parole Board is a six-member body that decides parole applications, sets parole conditions, and oversees parolees. Members are appointed by the Governor and confirmed by the Senate. Their statutory salary is set by reference to other state-officer salaries.
The 2021 framework had three intersecting statutes:
1. Section 47-7-5(2): full-time service, no outside employment, salary plus expense reimbursement only (in 2021, with per diem ban; after July 1, 2021, also per diem).
2. Section 25-3-38: total-and-complete-salary rule for appointive and employed officials. The Parole Board's salary was their full compensation.
3. Section 25-3-41: actual-expense reimbursement framework, governed by Department of Finance and Administration rules.
The interaction of these provisions created a tension that the 2021 opinion resolved. The "no compensation or per diem in addition to salary" language in § 47-7-5(2) could have been read broadly to bar even actual-expense reimbursement (on a theory that any payment in addition to salary was prohibited). The AG read the language narrowly: it banned per diem, not reimbursement. Both the structure of the statute (which expressly authorized reimbursement in the same paragraph) and the substantive distinction between flat-rate and actual-cost payments supported that reading.
The S.B. 2795 amendment effective July 1, 2021, simplified things by removing the per-diem ban entirely. After that date, Parole Board members could receive both salary and per diem, as well as expense reimbursement. The 2021 opinion's holding remained important for the period before that date and as an analytical framework for similar questions in other contexts.
Citations and references
Statutes:
- Miss. Code Ann. § 7-5-25, AG opinions limited to prospective legal questions
- Miss. Code Ann. § 25-1-98, full-time state employee work hours
- Miss. Code Ann. § 25-3-38, total-and-complete-salary rule for officials
- Miss. Code Ann. § 25-3-41, travel and expense reimbursement framework
- Miss. Code Ann. § 25-3-69, general per diem rate ($40/day)
- Miss. Code Ann. § 47-7-5(2), Parole Board membership and compensation rules
Bill referenced:
- S.B. 2795 (Reg. Sess. 2021), removing per-diem ban for Parole Board members effective July 1, 2021
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/05/A.Smith_May-3-2021-Reimbursements-for-Parole-Board-Members.pdf
Original opinion text
May 3, 2021
The Honorable Anthony Smith
Parole Board Member
660 North Street, Suite 100A
Jackson, Mississippi 39202
Re: Reimbursements for Parole Board Members
Dear Mr. Smith:
The Office of the Attorney General has received your request for an official opinion.
Issues Presented
(1) If a Parole Board member submits an expense voucher and is reimbursed for necessary expenses (including mileage, meals, and lodging) as defined under Section 25-3-41, has that parole board member violated the restriction on receiving per diem pay?
(2) At any point, does receiving regular reimbursements for necessary expenses pursuant to Section 25-3-41 become per diem pay?
Brief Response
As an initial matter, we note that opinions of this office are issued on prospective questions of law pursuant to Section 7-5-25. Official opinions do not validate nor invalidate past actions. Further, whether a particular statute has been violated is a factual question on which we do not opine. We offer the following for future guidance.
(1) No. Reimbursements to Parole Board members for actual and necessary expenses authorized pursuant to Sections 47-7-5(2) and 25-3-41 are separate and distinct from per diem pay, which is prohibited for Parole Board members under Section 47-7-5(2).[1]
(2) No. Reimbursements issued to Parole Board members pursuant to Sections 47-7-5(2) and 25-3-41 are for actual and necessary expenses. Per diem pay is a form of compensation calculated at a daily rate in accordance with Section 25-3-69. Section 47-7-5(2) authorizes Parole Board members to receive travel reimbursements and simultaneously prohibits them from receiving per diem pay.
Applicable Law and Discussion
Section 47-7-5 provides, in relevant part:
(2) Any person who is appointed to serve on the [State Parole Board] shall possess at least a bachelor's degree or a high school diploma and four (4) years' work experience. Each member shall devote his full time to the duties of his office and shall not engage in any other business or profession or hold any other public office. A member shall not receive compensation or per diem in addition to his salary as prohibited under Section 25-3-38. Each member shall keep such hours and workdays as required of full-time state employees under Section 25-1-98. Individuals shall be appointed to serve on the board without reference to their political affiliations. Each board member, including the chairman, may be reimbursed for actual and necessary expenses as authorized by Section 25-3-41.
Miss. Code Ann. § 47-7-5 (emphasis added).[2]
Pursuant to Section 25-3-41, certain public employees and officials are authorized to receive reimbursements for actual travel expenses, including mileage, lodging and meals, in accordance with the rules and regulations promulgated by the Department of Finance and Administration. Application of those rules to individual requests for reimbursement may be a question of fact determined by "the entity head or authorized designee." (For example, see State Travel Policy Rules & Regulations Section 101 (F), (J), and (N)).
The amount of reimbursement received under Section 25-3-41 would depend on the actual cost of the meals and hotel room and number of miles traveled. In contrast, per diem pay is compensation at a standard daily rate of pay.[3] For example, the general per diem statute, Section 25-3-69, provides:
Unless otherwise provided by law, all officers and employees of state agencies, boards, commissions, departments and institutions authorized by law to receive per diem compensation for each day or fraction thereof occupied with the discharge of official duties shall be entitled to Forty Dollars ($40.00) per diem compensation. When the Governor, Lieutenant Governor or Speaker of the House of Representatives appoints a person to a board, commission or other position that requires confirmation by the Senate, the person may receive per diem compensation for the performance of official duties before such appointment is confirmed by the Senate, as such per diem compensation is authorized under this section.
Accordingly, reimbursements to Parole Board members for actual and necessary expenses authorized pursuant to Sections 47-7-5(2) and 25-3-41 are separate and distinct from per diem pay.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Very truly yours,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General
[1] The statutes cited within this opinion reflect the law in effect as of the above date, and our conclusions herein reflect our interpretation of the law on such date. Section 47-7-5(2) currently provides, in relevant part: "A member shall not receive compensation or per diem in addition to his salary as prohibited under Section 25-3-38." Effective July 1, 2021, this provision will read: "A member shall receive compensation or per diem in addition to his salary." S.B. 2795, Reg. Sess. (Miss. 2021).
[2] Section 25-3-38 provides, in part, that "[t]he salary for appointive and/or employed officials established herein shall be the total and complete salary, and it shall be unlawful for any additional funds to be paid from any source, including federal or private funds, to supplement salaries to a level in excess of that established herein." Miss. Code. Ann. § 25-3-38. Payment under Section 25-3-38 is separate and distinct from reimbursement for actual and necessary expenses authorized pursuant to Section 25-3-41.
[3] The Merriam-Webster Dictionary defines "per diem" as "a daily allowance" or "a daily fee," and defines "reimbursement" as the noun form of the verb to reimburse, or "to pay back to someone: REPAY" or "to make restoration or payment of an equivalent to."