MS 2023-09-E-Burch-September-21-2023-Sheriffs-Deputys-Authority-to-Issue-Municipal-Ticket-T September 21, 2023

Can a sheriff's deputy who also moonlights as a town police officer write a town traffic ticket while on duty as deputy sheriff?

Short answer: No. A sheriff's deputy on duty as deputy sheriff has no authority to issue a municipal traffic citation returnable to municipal court, even if the same person also moonlights as a town police officer. The duties must be kept separate; nobody can be paid by both the sheriff and the town for the same hours. The deputy can report observations to an on-duty municipal officer.

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 AG opinions are persuasive authority but not binding precedent.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.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Plain-English summary

The Town of McLain crosses parts of Perry and Greene counties, and several of its police officers also work as deputies for the local sheriffs' departments. McLain's attorney asked the AG: if a sheriff's deputy (who also has a part-time town police job) is on the clock for the sheriff and observes a traffic violation in town, can he issue a McLain town ticket?

The AG said no. While someone can hold both jobs (deputy and municipal officer), the two roles must be kept distinct. Mississippi has long-standing rules:

The sheriff is the chief law enforcement officer of the county, with deputies who carry out duties of the sheriff's office (§§ 19-25-19, 19-25-67).
The chief of police is the chief law enforcement officer of a municipality, supervising police officers who perform duties imposed by ordinance (§ 21-21-1).
A person can hold both jobs, but cannot perform municipal duties while on the clock as deputy or vice versa.
Nobody can be paid by both entities at the same time for the same hours.

The AG concluded: a deputy sheriff on duty as deputy sheriff has no authority to issue a municipal citation returnable to municipal court. The deputy can report what they observed to an on-duty municipal officer, who can take it from there.

What this means for you

Sheriffs and chiefs of police using dual-employed officers

The opinion holds that the deputy and municipal roles must be kept separate. A person may serve as both a municipal police officer and a deputy sheriff (citing the Strider opinion), but the opinion finds "no authority for a deputy sheriff to carry out the duties of a municipal police officer while acting in the capacity as a deputy sheriff." The duties "must be clearly differentiated as either those of a municipal officer to be paid by the municipality or as those of a deputy sheriff to be paid by the sheriff's department," because (citing the Thomas opinion) a person cannot be paid by both entities at the same time.

Deputies who also work as municipal officers

Under the opinion, while on duty as a deputy sheriff, the officer "has no authority to issue a municipal citation returnable through municipal court." The opinion identifies the permitted alternative directly: "the deputy sheriff may report his observations to an on-duty municipal officer."

Town attorneys and municipal courts

The opinion's holding is that a citation issued by an officer "acting in the capacity of and being paid as deputy sheriff" lacks authority. It does not lay out procedures for challenging or reissuing such a citation; it addresses only the authority question and the report-to-a-municipal-officer alternative.

Common questions

Q: Can the same person hold both jobs?
A: Yes. The opinion confirms a municipal police officer may also serve as a deputy sheriff (citing the Strider opinion). What it bars is performing the municipal duty while on duty as, and being paid as, a deputy sheriff.

Q: Why can't a deputy on county duty write the town ticket?
A: The opinion ties it to the pay rule: the duties must be kept separate because a person "cannot be paid by both entities at the same time" (citing the Thomas opinion). A deputy acting and being paid as a deputy is not acting as a municipal officer, so there is no authority to issue a municipal citation.

Q: So what can the deputy do if they see a town violation while on county duty?
A: The opinion says the deputy sheriff "may report his observations to an on-duty municipal officer."

Background and statutory framework

The basic structural lines:

Sheriff (county officer): § 19-25-67 makes the sheriff the chief law enforcement officer of the county, with the duty to keep the peace within the county. § 19-25-19 lets the sheriff appoint deputies who can perform "all acts and duties enjoined upon their principals."
Chief of police (municipal officer): § 21-21-1 makes the chief of police the chief law enforcement officer of the municipality, supervising police officers and performing the duties required by ordinance.

Mississippi recognizes that small towns and rural counties often have overlapping personnel. A 2000 AG opinion (Strider) confirmed that someone can serve as both a municipal police officer and a deputy sheriff. The same opinion stressed that the two roles must be "kept separate" so that one person isn't being paid by two entities at the same time.

A 2004 AG opinion (Thomas), which this opinion cites, stands for the rule that a person cannot be paid by both entities at the same time, which is why the duties have to be clearly differentiated by which entity pays for the hours worked.

Applying those principles, the opinion concludes that a deputy sheriff "acting in the capacity of and being paid as deputy sheriff" has no authority to issue a municipal citation returnable through municipal court. The alternative it identifies is for the deputy to report the observed violation to an on-duty municipal officer.

Citations and references

Statutes:
- Miss. Code Ann. § 19-25-19 (sheriff's authority to appoint deputies; deputies have power to carry out duties of their principals)
- Miss. Code Ann. § 19-25-67 (sheriff is chief law enforcement officer of the county; duty to keep the peace)
- Miss. Code Ann. § 21-21-1 (chief of police is chief law enforcement officer of a municipality; supervises police officers)

Prior AG opinions referenced:
- MS AG Op., Strider (Mar. 17, 2000): a person can serve as both a municipal police officer and a deputy sheriff, but the duties must be kept separate; cannot perform duties for one entity while being paid by the other.
- MS AG Op., Thomas (Sept. 10, 2004): a person cannot be paid by both entities at the same time.

Source

Original opinion text

September 21, 2023

Elliot Burch, Esq.
Attorney, Town of McLain
Post Office Box 1215
Lucedale, Mississippi 39452

Re: Sheriff's Deputy's Authority to Issue Municipal Ticket Through Municipal Court While on Duty as Sheriff

Dear Mr. Burch:

The Office of the Attorney General has received your request for an official opinion.

Background

You state in your request that the town of McLain includes parts of Perry and Greene counties, and several of the town police officers also work for the local sheriffs' departments.

Question Presented

If a sheriff's deputy (who also works part time as an officer for the McLain police department) is working on a sheriff's department matter within the town of McLain and observes someone commit a traffic violation, may that sheriff's deputy issue a town of McLain traffic ticket?

Brief Response

We find no authority for a deputy sheriff to issue a municipal citation returnable through municipal court while acting in the capacity of and being paid as deputy sheriff.

Applicable Law and Discussion

The sheriff is the chief law enforcement officer of the county whose duty is to keep the peace within his county. Miss. Code Ann. § 19-25-67. Sheriffs have the power to appoint deputies to assist in carrying out the duties of the office, and those deputies have the power to carry out all "acts and duties enjoined upon their principals." Miss. Code Ann. § 19-25-19. On the other hand, the chief of police is the chief law enforcement officer of a municipality and has supervision and control of all police officers employed by the municipality and who must perform the duties as required of him by ordinance. Miss. Code Ann. § 21-21-1.

A municipal police officer may also serve as a deputy sheriff. MS AG Op., Strider at 1 (Mar. 17, 2000). However, we find no authority for a deputy sheriff to carry out the duties of a municipal police officer while acting in the capacity as a deputy sheriff. This office has opined that any individual who serves as both a municipal police officer and deputy sheriff shall keep his or her duties for each position separate and take care not to perform duties for one entity while being paid by the other. Strider at 1. This is because individuals cannot be paid by both entities at the same time. MS AG Op., Thomas at *1 (Sept. 10, 2004). Accordingly, the duties must be clearly differentiated as either those of a municipal officer to be paid by the municipality or as those of a deputy sheriff to be paid by the sheriff's department. Id. It is therefore our opinion that a deputy sheriff has no authority to issue a municipal citation returnable through municipal court while acting in the capacity of and being paid as deputy sheriff. However, the deputy sheriff may report his observations to an on-duty municipal officer.

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