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, which is the general surplus-property disposal statute for counties. That involves declaring the property surplus and disposing of it through the regular surplus channels, which can include a public sale. So in practice, the constable might be able to buy the sidearm at a public sale of surplus property, but not as a privileged retired-officer purchase under Section 45-9-131.
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
If you are a county supervisor or county attorney
Section 45-9-131 is narrow. The two-path structure (retired under a state retirement system OR 10 continuous years of service) is the only way the privileged-purchase authority applies. If a former constable, deputy, or other officer does not fit one of those two paths, you cannot use this statute to sell the sidearm.
The surplus-property path under Section 17-25-25 is available, but it is a different process: declare the property surplus, follow the surplus-disposal procedures (which generally include public notice and competitive sale), and dispose accordingly. The ex-officer becomes a member of the public for purposes of any sale; they have to bid like anyone else and pay fair market value. You cannot designate a sale price favoring the former officer, because that would be back to the impermissible privileged-purchase route.
If you are a constable, deputy, or municipal officer leaving without 10 years and without retirement vesting
You probably will not get to keep your service sidearm under Section 45-9-131. Your options:
- Buy at a public surplus sale. If the county or city declares the firearm surplus, you can bid at the sale alongside the public.
- Stay until you vest or until 10 continuous years. If retention of your sidearm matters to you and your service is close to either threshold, finish out the timeline.
- Buy a personal sidearm. Many officers buy personal sidearms anyway; the agency-issued sidearm is just one of the firearms they carry. A personal sidearm is yours regardless of vesting.
If you are a sheriff or police chief managing your agency's firearms
You set policy on whether and when officers can buy issued sidearms. Section 45-9-131 sets a floor (the privileged-purchase opportunity for retirees and 10-year veterans) but does not require you to allow the purchase. Your agency may choose to retain all sidearms regardless of officer status, or you may have a policy of selling at fair market under Section 17-25-25 to any departing officer. Whatever the policy, document it and apply it consistently.
If you are advising a Mississippi public officer on retirement planning
PERS vesting matters not just for retirement income but for collateral benefits like the Section 45-9-131 sidearm purchase. Officers who are close to vesting should understand the implications of leaving early, both for retirement income and for these smaller benefits.
Common questions
Q: What does "vested in PERS" mean?
A: PERS (Public Employees' Retirement System) requires a minimum number of service credits before a member becomes "vested," meaning entitled to draw retirement benefits. Generally, vesting in PERS requires at least 8 years of service credit (the threshold has changed over time; check current PERS rules). A member who contributes but does not vest is entitled to a refund of contributions but not to retirement benefits.
Q: Why is "retirement" treated differently from "leaving office"?
A: Section 45-9-131 treats retirement under a state retirement system as a special form of departure, recognizing that career officers who reach retirement have built up significant service. Leaving office for any other reason (resignation, term expiration, defeat in election) is a different category. The statute's other path (10 continuous years of service) recognizes long-term service short of retirement.
Q: Does "any state retirement system" include only PERS?
A: PERS is the dominant state retirement system, but Mississippi has others (the Highway Safety Patrol Retirement System, the Optional Retirement Plan, etc.). Any of those would count for Section 45-9-131 purposes if the officer actually retires under it.
Q: Could the legislature change this?
A: Yes. The legislature could amend Section 45-9-131 to add additional qualifying paths (e.g., elected officials who serve a full term without seeking reelection, or officers who served any number of years). Until amended, the two-path structure controls.
Q: What price would the sidearm sell for under the surplus property route?
A: Section 17-25-25 governs disposition of surplus county personal property. The general rule is fair market value, often determined by appraisal or by competitive sale. Counties typically use auction procedures or other competitive methods. The constable here would not get a discount; he would be a bidder among the public.
Q: Why would the AG flag the Ethics Commission?
A: Mississippi has strict rules about transactions between public officers (and former public officers in some circumstances) and the entities they served. Selling county property to a former officeholder, even at fair market, can raise self-dealing or appearance-of-impropriety questions. The Ethics Commission can review proposed transactions and offer guidance to avoid violations.
Q: Does this analysis apply to other items besides sidearms? Like patrol vehicles or radios?
A: No. Section 45-9-131 is specific to sidearms. Other agency property (vehicles, radios, body cameras, badges) is governed by different statutes, agency policy, or general surplus disposal rules.
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) deals with the price the agency may charge. Because the constable here does not qualify under subsection (1), subsection (4) is moot.
Section 17-25-25 is the general county surplus-property disposal authority. When property is no longer needed by the county and is declared surplus, the board of supervisors may dispose of it under specified procedures (typically including public notice and competitive sale).
The 2019 Hollingsworth AG opinion is the precedent the AG cited: a resigning police officer (not retiring) did not qualify under Section 45-9-131. The 2024 opinion extends the same logic to a non-vested elected official who finishes his term and does 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