MS 2023-05-T-Franklin-April-26-2023-Secondary-Employment-for-Chief-of-Police April 26, 2023

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

Short answer: Yes, with limits. The Mississippi AG sees no separation-of-powers problem with a town's police chief also serving as an assistant water utility maintenance worker, since both positions are in the executive branch and the utility role doesn't exercise 'core powers.' The chief must do utility work only off-duty from the chief role, and ethics and pay-apportionment questions go to the Ethics Commission and the State Auditor.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

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 practical follow-on questions, what parameters to follow and how to apportion pay, because those are conflict-of-interest and compensation issues that belong to the Mississippi Ethics Commission and the Office of the State Auditor. The Office did add one clear rule from past opinions: a police chief who takes a secondary public job may perform that job only during hours when he is not on duty as chief, and he cannot collect chief pay for time spent on the second job.

What this means for you

Mayors and boards of aldermen

You can structure a part-time chief plus part-time utility worker arrangement, but document the rules. The chief's two roles need clear time tracking, written job descriptions, and a payroll setup that records the chief hours separately from the utility hours. Before you finalize the arrangement, get a written advisory opinion from the Mississippi Ethics Commission, which has actual jurisdiction over conflict-of-interest concerns the AG declined to address.

Police chiefs offered a second town job

The AG signed off on the structure, but the practical risk is yours. If you are on call as chief 24/7, document when you are "off duty" so your utility hours are not happening on the city's chief-pay clock. Misalignment of those hours could be a Section 25-4 ethics issue or a State Auditor finding. Also confirm with the Ethics Commission whether you can lawfully approve, supervise, or otherwise influence the utility hiring or supervision decisions that affect you.

Municipal attorneys

The opinion is narrow. It addresses only separation of powers and notes precedent that an off-duty chief can take outside work. Anything about contracts of interest under Section 25-4-105 (the prohibition on a public servant having a material financial interest in a contract with their own governmental entity) is the Ethics Commission's call, not the AG's. Build the file before the board votes.

Citizens and residents of small towns

Small Mississippi towns frequently combine multiple jobs into a single full-time-equivalent worker because the budget will not support two full-time hires. The AG's answer here is that the law allows it for the police chief plus utility worker combination, with strict time and pay separation. If you see the same person on the schedule for both jobs at the same time, that is the red flag to ask about, not the structure itself.

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 AG did not treat that fact as legally significant. Practically, it raises questions about what happens to law enforcement coverage when the chief is on utility hours, but those are operational, not legal.

How should the town apportion the pay?
The AG declined to opine and referred the town to the Ethics Commission and the State Auditor. The safest approach is two separate timesheets, two separate hourly or salary calculations, and two separate payroll lines.

What if the second job were instead a city council seat or a magistrate position?
Different answer. Council and judicial roles can implicate "core powers" of the legislative or judicial branch, which is exactly the kind of cross-branch service the separation-of-powers doctrine bars. The grunt-level utility job is the safe end of the spectrum.

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

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
1. 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.
2. We defer to the Mississippi Ethics Commission on this question.
3. 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