Can a Mississippi county recover gas and wear-and-tear costs when a deputy uses an official vehicle for off-duty private security work?

Plain-English summary

Mississippi Code Annotated Section 17-25-11 lets a certified law enforcement officer (sheriff's deputy, municipal police officer, or DPS officer) wear the official uniform and use the official firearm and the official vehicle issued by the employing jurisdiction while working off-duty private security. The catch: the officer needs the employing jurisdiction's approval, on the minutes (for a city), from the sheriff (for deputies), or from the DPS Commissioner (for state officers). Approval has to be on an employee-by-employee basis, not by general order, and the proceedings are public records.

Section 17-25-11(3)(b)(i) covers indemnification: when a county or city authorizes off-duty use of its uniform, weapon, or vehicle, that approval includes indemnity for damage to the official vehicle. So if the deputy in his off-duty private security job dings the cruiser, the city or county is indemnified.

The Scott County Board of Supervisors asked: that handles the indemnity side, but what about routine wear and tear? When the deputy is using the county's official vehicle for hours on a private security job, the county is paying for the gas and absorbing the depreciation, brake wear, tire wear, and so on. Can the county recover those costs?

The AG said yes, by conditioning the approval. The statute does not say the county has to authorize the off-duty vehicle use at no cost. The approval requirement in subsection (1) is broad enough to let the employing jurisdiction set conditions, and reimbursement of operating costs is a reasonable condition. So a county that allows deputies to use cruisers for off-duty security work can require either the deputy or the private security customer to reimburse the county for gas, wear and tear, mileage, or whatever metric the county picks.

What this means for you

If you are a county sheriff or municipal police chief

The opinion holds that, although Section 17-25-11 does not directly address reimbursement outside of indemnity, an employing jurisdiction may make reimbursement of incurred expenses (gasoline, wear and tear, etc.) a condition of approval for a certified officer to use the official vehicle for off-duty private security. Under Section 17-25-11(1), the use requires the employing jurisdiction's approval, on an employee-by-employee basis and not by general order, with the approval proceedings being a public record.

If you are a deputy or officer doing off-duty private security

The opinion holds the employing jurisdiction may condition approval of off-duty official-vehicle use on reimbursement of incurred expenses. It holds the use itself requires the jurisdiction's approval under Section 17-25-11(1), and that subsection (3)(b)(i) indemnifies the employing jurisdiction, including for damage to the official vehicle.

If you are a county attorney drafting an off-duty employment policy

The opinion holds reimbursement of incurred vehicle expenses may be made a condition of approval, and that nothing in Section 17-25-11 prohibits it. It identifies the statutory approval requirement in subsection (1) and the indemnity provision in subsection (3)(b)(i).

Common questions

Q: Does Section 17-25-11 require the county to allow off-duty use of official vehicles?
A: No. The statute permits off-duty use with approval; it does not require the employing jurisdiction to approve. A sheriff or municipal governing authority can decline.

Q: Can the reimbursement be paid by the private employer instead of the deputy?
A: The statute does not specify. Either arrangement is allowed by Mississippi law. The county sets the condition; the deputy and the private employer can negotiate which one writes the check.

Q: What about the indemnity in § 17-25-11(3)(b)(i)? Does requiring reimbursement affect that?
A: No. The indemnity for damage to the official vehicle is statutory and applies when the use is authorized under § 17-25-11(1). Adding a reimbursement condition is just adding a condition to the approval; it does not negate the statutory indemnity once approval is in place and the use complies with the approval terms.

Q: How does the county set the reimbursement amount?
A: The opinion does not specify a methodology. It holds only that reimbursement of incurred expenses such as gasoline and wear and tear may be made a condition of approval.

Q: Does this apply to the uniform and firearm too, or just the vehicle?
A: The opinion addresses recovery of vehicle expenses (gasoline, wear and tear). The question presented and the holding concern the official vehicle.

Q: Are the approval records public?
A: Yes. § 17-25-11(1) explicitly says: "Any proceedings regarding application or approval and the minutes regarding same shall be a public record." So if a citizen wants to know which deputies are approved for off-duty work and where, that is open records material.

Background and statutory framework

Section 17-25-11(1) is the core authority:

Certified law enforcement officers or certified part-time law enforcement officers, as defined in Section 45-6-3, who are employed by a county, municipality or the Department of Public Safety may wear the official uniform and may utilize the official firearm and the official vehicle issued by the employing jurisdiction while in the performance of private security services in off-duty hours. The governing authority of a municipality must approve of such use of the uniform, official weapon and vehicle by municipal law enforcement officers by act spread upon the minutes of such board and approved by the chief executive. The sheriff of a county must approve such use of the uniform, official weapon and vehicle by deputy sheriffs. The Commissioner of the Department of Public Safety must approve such use of the uniform, official weapon and vehicle by officers of the department. Approval shall be on an employee-by-employee basis and not by general order. Any proceedings regarding application or approval and the minutes regarding same shall be a public record.

Subsection (3)(b)(i) handles the indemnity question: the employing jurisdiction is indemnified from any action arising from the off-duty use, including indemnity for damage to the official vehicle.

The AG read these two provisions together: subsection (1) requires approval; subsection (3) provides indemnity. Neither prohibits the employing jurisdiction from imposing reimbursement as a condition of the approval. The opinion says expressly: "Although Section 17-25-11 does not directly address reimbursement outside of indemnity, an employing jurisdiction may make reimbursement of incurred expenses due to gasoline, wear and tear, etc., a condition of approval."

Section 45-6-3 (referenced in subsection 1) defines who counts as a certified law enforcement officer or certified part-time law enforcement officer for purposes of the statute.

Citations

• Miss. Code Ann. § 17-25-11
• Miss. Code Ann. § 17-25-11(1)
• Miss. Code Ann. § 17-25-11(3)(b)(i)
• Miss. Code Ann. § 45-6-3

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/04/R.LeeJr_.-April-3-2024-Countys-Ability-to-Recover-Expenses-Under-Section-17-25-11.pdf

Original opinion text

April 3, 2024
Roy Noble Lee, Jr., Esq.
Attorney, Scott County Board of Supervisors
Post Office Box 370
Forest, Mississippi 39074
Re: County's Ability to Recover Expenses Under Section 17-25-11

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

Question Presented
Does Mississippi Code Annotated Section 17-25-11 allow the county to recover expenses incurred, gasoline, wear and tear, etc., when a certified law enforcement officer utilizes his or her official vehicle while working off-duty private security?

Brief Response
Although Section 17-25-11 does not directly address reimbursement outside of indemnity, an employing jurisdiction may make reimbursement of incurred expenses due to gasoline, wear and tear, etc., a condition of approval for a certified law enforcement officer to utilize his or her official vehicle for an off-duty private security job.

Applicable Law and Discussion
Section 17-25-11 governs when and how a certified law enforcement officer employed by a county, municipality, or the Department of Public Safety may use his or her official uniform, firearm, or vehicle issued by his or her employing jurisdiction while working off-duty private security. As acknowledged in your request, the statute addresses indemnity for the employing jurisdiction from any action taken against it because of the officer utilizing his or her official uniform, weapon, or vehicle. Miss. Code Ann. § 17-25-11(3)(b)(i). This includes indemnity for "any damage to the official vehicle." Id.

You ask if, aside from this indemnification provision, there is any portion of the statute that would allow the county to recover expenses, gasoline, wear and tear, etc., when an official vehicle is used in the capacity contemplated by Section 17-25-11. Although Section 17-25-11 does not directly address reimbursement outside of indemnity, Subsection (1) requires the approval of the employing jurisdiction for a certified officer to use his or her official uniform, firearm, or vehicle issued by his or her employing jurisdiction while working off-duty private security:

Certified law enforcement officers or certified part-time law enforcement officers, as defined in Section 45-6-3, who are employed by a county, municipality or the Department of Public Safety may wear the official uniform and may utilize the official firearm and the official vehicle issued by the employing jurisdiction while in the performance of private security services in off-duty hours. The governing authority of a municipality must approve of such use of the uniform, official weapon and vehicle by municipal law enforcement officers by act spread upon the minutes of such board and approved by the chief executive. The sheriff of a county must approve such use of the uniform, official weapon and vehicle by deputy sheriffs. The Commissioner of the Department of Public Safety must approve such use of the uniform, official weapon and vehicle by officers of the department. Approval shall be on an employee-by-employee basis and not by general order. Any proceedings regarding application or approval and the minutes regarding same shall be a public record.

Miss. Code Ann. § 17-25-11(1).

It is thus the opinion of this office that an employing jurisdiction may make reimbursement of incurred expenses due to gasoline, wear and tear, etc., a condition of approval for a certified law enforcement officer to utilize his or her official vehicle for an off-duty private security job.

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