This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on November 7, 1997, basing its approval solely on the facts and circumstances stated herein.

ISSUE 1. May a county purchase from a service center owned by an
individual serving as one of the county's justice court judges?

ISSUE 2. May a city purchase from a service center owned by an
individual that is serving as a justice court judge in the county in which the city is located?

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

Code Section 25-4-103 (a), (c), (d), (f)(i)(ii), (g)(i)(ii)(iii)(iv)(v), (h), (k)(i)(ii), (l) 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.

(d) 'Business with which he is associated' means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.

(f) '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;

        (ii) Municipalities;

        (iii) All school districts;

        (iv) All courts; and

        (v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.

(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.

(k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

        (i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

        (ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).

(l) '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)(d) 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.

(3) No public servant shall:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(d) May be a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which is a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent: (i) where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws; or (ii) where the contractual relationship involves the further research, development, testing, promotion or merchandising of an intellectual property created by the public servant."

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.

I am a Justice Court Judge of this County. I need a written opinion on this matter. Is it legal for a city or county to continue to do business with a company, after the owner of the company has been elected Justice Court Judge of that county?

In addition to the above facts, the requestor provided information indicating that the company is an auto service center.

The Commission formally adopts Advisory Opinion No. 93-231-E in response to this request and by attachment incorporates it into this opinion.

Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.

ISSUE 1. As set forth in the attached Advisory Opinion No. 93-231-E, Code Section 25-4-105 (3)(a), cited above, prohibits a company owned by a justice court judge from doing business with the county the justice court judge is elected to serve.

Code Section 25-4-105 (4)(d), cited above, is an exception to Code Section 25-4-105 (3)(a), and provides that a public servant's business may be a contractor, subcontractor or vendor with the authority of the governmental entity the public servant is an officer of "where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws."

A service center is not a business that would be considered as one that provides goods or services that are reasonably available from two (2) or fewer commercial sources. Therefore, the exception set forth in Code Section 25-4-105 (4)(d) is not applicable to the requestor's circumstance.

ISSUE 2. It is not as such a violation of the state conflict of interest laws for a justice court judge's company to do business with a city that is located in the county the justice court judge is elected to serve.

However, Code Section 25-4-105 (3)(a) would prohibit a justice court judge's company from doing business with a city if the city's governing authority has appointed the justice court judge as the municipal judge for the city as authorized in Code Section 21-23-5.

If a justice court judge is not serving as the city's municipal judge, the justice court judge must still remain keenly aware of Code Section 25-4-105 (1), cited above, should his company do business with a city that is located in the county he is elected to serve.

Code Section 25-4-105 (1) prohibits public servants from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business with which they are associated.

To avoid using their official positions to obtain a pecuniary benefit, the public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests. An abstention is a vote with the majority of the governing entity's board and therefore does not qualify as a recusal.

A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during the official meeting, but also avoid discussing the subject matter with other board members, staff or any other person prior to and after the official meeting. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

Also to properly recuse oneself from a matter, the public servant must leave the room or area where such discussions, considerations and/or actions take place. The minutes of the governing entity's board should state the public servant left the meeting by showing him or her absent for that matter.

Therefore, a justice court judge would be required to recuse himself from any matter coming before the county justice court that concerns a city that does business with the justice court judge's company.
 

                                                                                            Ronald E. Crowe
                                                                                            Executive Director