This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 2, 1997, basing its approval solely on the facts and circumstances stated herein.

May a partner in the county prosecuting attorney's law firm contract with the county board of supervisors to represent the county in civil forfeiture proceedings?

The pertinent conflict of interest laws to be considered here are:

Code Section 25-4-101 states:

"The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect urifavorably upon the state and local governments."

Code Section 25-4-103 (a), (c), (e), (f)(i)(ii), (g)(i), (h), (k)(i)(ii) and (p)(i)(ii)(iii) states:

"(a) 'Authority' means any component unit of a governmental entity.

(c) 'Business' means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a nonprofit corporation or other such entity, association or organization receiving public funds.

(e) 'Compensation' mean money or thing of value received, or to be received, from any person for services rendered.

(t) 'Contract' means:

(i) Any agreement to which the government is a party; or

(ii) Any agreement on behalf of the government which involves the payment of public funds.

(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties.

(h) 'Governmental entity' means the state, a county, a municipality or any other separate political subdivision authorized by law to exercise a part of the sovereign power of the state.

(1) 'Pecuniary benefit' means benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain. Expenses associated with social occasions afforded public servants shall not be deemed a pecuniary benefit.

(p) 'Public servant' means:

(i) Any elected or appointed official of the government;

(ii) Any officer, director, commissioner, supervisor, chief, head, agent or employee of the government or any agency thereof; or of any public entity created by or under the laws of the State of Mississippi or created by an agency or governmental entity thereof; any of which is funded by public funds or which expends, authorizes or recommends the use of public funds; or

(iii) Any individual who receives a salary, per diem or expenses paid in whole or in part out of funds authorized to be expended by the government." Code Section 25-4-105 (1), (3)(a) and (4)(b) states:

"(1) No public servant shall use his official position to obtain pecuniary benefit for himself other than that compensation provided for by law, or to obtain pecuniary benefit for any relative or any business with which he is associated."

Please present the following situation to the Ethics Commission so that they can issue an advisory opinion as to whether I or my law partner would violate any ethics statutes or rules of professional conduct if I undertake the representation described.

The County Sheriff's Department from time to time makes seizures under the Uniform Controlled Substances Law, and wishes to receive income from that property by disposing of it through our civil forfeiture proceedings. The County Board of Supervisors wishes to hire an attorney to represent them in these civil forfeiture proceedings.

I have quoted them a contingency fee of 25% of the sale price of seized property sold at auction, a flat fee of $10.00 for all items of personal property used rather than auctioned, and a flat fee of $100.00 for each seized automobile used rather than auctioned.

I own 20% of the stock of my law firm and my partner owns 80% of the firm's stock. My partner is also the County Prosecuting Attorney for the County. He does not represent the Board of Supervisors, as do some County Attorneys. Any income that I derive from the practice of law is put into the coffers of our law firm. The Mississippi Ethics statutes provide that a public official cannot use his official position to obtain pecuniary gain for a business in which he is associated. My partner has not suggested to the Board that they hire me. The fact is that the representation is not very lucrative. Because I am the newest attorney in town, I am probably the only attorney who is interested in doing this work. In fact, the District Attorney has refused to do it. The Board's regular attorney has said he doesn't have time to do it. Therefore, I approached the Board when I learned that the Sheriff's Dept. needed someone to do the forfeitures.

Please answer the following questions based on these facts.

(1) May the County Board of Supervisors hire me to do civil forfeitures if I put the money so earned into our law firm? My law partner receives 80% of the profits of the law firm, but he has done nothing to influence the Board to hire me rather than someone else.

(2) If the answer to (1) is "no," can any ethical problem of unfair influence by my partner be cleared up if the Board notifies the other attorneys in town and asks them to submit fee proposals for the representation? In other words, if the other attorneys in town are made aware of the need for the representation, and I am still the low bidder, may the Board hire me?

(3) If the answer to both (1) and (2) are "no," may the County Board of Supervisors hire me to do the civil forfeitures if I agree not to put any of the money earned from the representation into our law firm?

First, establishing that the requestor/attorney's interest is not independent or distinguishable from his law firm's interest for purposes of the above referenced conflict of interest laws where contracts are involved is necessary. The requestor/attorney, his partner and their law firm unquestionably have a direct interest in each others' contracts no matter whether the requestor/attorney or his partner is doing the actual work.

The district attorney is the primary prosecutorial officer to represent the county with civil forfeitures relating to seizures under the Uniform Controlled Substances Law. Should the district attorney choose not to conduct the civil forfeitures, he or she may designate the county prosecuting attorney to appear on his or her behalf pursuant to an agreement filed with the circuit court clerk. The county prosecuting attorney may not be compensated over and above his or her salary for conducting the civil forfeitures for the county.' In addition, the county prosecuting attorney may not contract with the county as a private attorney to conduct civil forfeitures for additional compensation. ²

In this instance, the district attorney apparently has declined to proceed with the civil forfeitures. It is equally apparent that the county prosecuting attorney also has declined to proceed

¹ See attached Attorney General's Opinion issued to Charles J. Swayze, Jr. on September
8, 1993.

² See attached Attorney General's Opinion issued to Charles J. Swayze, Jr. on September
30, 1993.

with the civil forfeitures. The county prosecuting attorney has not agreed to represent the county in the civil forfeiture actions by an agreement with the district attorney as he and the district attorney are authorized to do by filing with the circuit clerk. Also, the facts show that the county prosecuting attorney's law partner is "probably the only attorney who is interested in doing the work."

Code Section 25-4-105 (1), cited above, prohibits a public servant from using his or her official position to obtain a pecuniary benefit for a business with which he or she is associated.

As stated above, the law partners and the law firm cannot be separated for purposes of the conflict of interest laws. Therefore, a contract with the county prosecuting attorney's law firm or his law partner results in a contract with a business [the law firm] with which the county prosecuting attorney is associated.

The county prosecuting attorney's failure to agree to an agreement with the district attorney to represent the county in the civil forfeitures, when his law partner is positioned as the reasonably available alternative for the county to turn to for representation, is a use of the county prosecuting attorney's official position to benefit his law firm in violation of Code Section 25-4-105 (1).

A violation still occurs even if the county's contract is pursuant to a low bid submitted by the county prosecuting attorney's law partner.

A decision by the law partner to not share with the law firm the fees paid him should the county hire him to do the civil forfeitures still presents concerns. First, he would be using the law firm's resources and would in some way have to compensate the firm for such resources. Second, a serious public policy question is raised.

Code Section 25-4-101, set forth above, sets the tone for the conflict of interest laws as the Legislature's "Declaration of Public Policy." This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.

Clearly under any circumstances, the county prosecuting attorney's law partner being compensated by the county to conduct civil forfeitures under the Uniform Controlled Substance Act
has the potential of creating suspicion among the public and reflecting unfavorably upon the county
prosecuting attorney's office and the county board of supervisors.

The requestor/attorney is therefore prohibited from contracting with the county in such civil forfeiture proceedings.
 

Ronald E. Crowe Executive Director