This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 5, 1999, basing its approval solely on the facts and circumstances stated herein.

May a state employee remain employed by the state while a candidate for the position of state legislator and if elected must the state employee resign from employment with the state before being sworn in as a member of the Legislature?

State law restricts the Mississippi Ethics Commission to interpreting and issuing opinions on Sections 25-4-101 through 25-4-119, 1972 Mississippi Code Annotated and Article IV, Section 109, Mississippi Constitution of 1890. Therefore, this opinion does not address the Mississippi laws outside the Commission's jurisdiction nor the governmental entity's internal rules and regulations.

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

Constitutional Section 109 states:

"No public officer or member of the legislature shall be interested, directly or indirectly, in any contract with the state, or any district, county, city, or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term."

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 unfavorably upon the state and local governments."

Code Section 25-4-103 (f)(i)(ii), (g)(v), (h), (l) and (p)(i)(ii)(iii) states:

"(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:

(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.

(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) and (2) 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.

(2) No public servant shall be interested, directly or indirectly, during the term for which he shall have been chosen, or within one (1) year after the expiration of such term, in any contract with the state, or any district, county, city or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member."

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 in need of a written opinion so that I can do what is legal and proper. I am at present employed by the Mississippi Department of Corrections.

I have filed as a candidate for the Mississippi Legislature.

My question is, do I have to resign as a candidate to run for a state office or must I resign when and if I am elected and prior to my being sworn in as an elected state official.

Be so kind as to advise me so that I may avoid any conflict of interest allegations or ramifications.

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

Constitutional Section 109 and Code Section 25-4-105 (2), both cited above, prohibit a member of the Legislature from being interested, directly or indirectly, in any contract authority by the Legislature during the member's term and for one year thereafter.

The Mississippi Supreme Court in Frazier v. State , 504 So. 2d 675 (1987 and in Cassibry v. State , 404 So. 2d 1360 (1981), ruled that an appropriation bill funding programs that allow payments under contracts in which legislators are interested are laws authorizing the contracts.

Specifically in Frazier , supra , the Mississippi Supreme Court ruled Constitutional Section 109, and therefore Code Section 25-4-105 (2), absolutely prohibited a state senator from being employed as a professor by a state university and a state representative from being employed as a lecturer by a state university when the state university received funding by appropriations from the Legislature during the senator's term and the representative's term.

Therefore, based on the above Mississippi Supreme Court decisions, the requestor, if elected as a member of the Legislature, must resign from his employment position with the Department of Corrections prior to the Legislature appropriating funding for the Department of Corrections during the requestor's term of office. The requestor's term of office begins once the requestor takes the oath of office as a member of the Legislature.

The issue presented by the requestor also must be viewed as it relates to Code Section 25-4-101, set forth above. This code section 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.

The requestor is advised that his continued employment by the state after taking the oath of office as a member of the Legislature is a course of conduct that is in violation of the public trust set forth in Code Section 25-4-101. Therefore in order to comply with the state's public policy set forth in Code Section 25-4-101, the requestor must resign as a state employee before taking the oath of office as a member of the Legislature should the requestor be elected.

The requestor is advised that the state conflict of interest laws do not as such prohibit a state employee from being a candidate for the Legislature.

However, Code Section 25-4-101 and the above cited Code Section 25-4-105 (1) both prohibit a state employee, and thereby the requestor, from campaigning for elected office during those hours the state employee is carrying out his public duties and is being compensated by the state. Also, Code Section 25-4-101 and Code Section 25-4-105 (1) prohibit a state employee, and thereby the requestor, from using state equipment, supplies or other resources in any campaign activity.

The requestor is advised to also request an opinion from the State Attorney General's office on whether there are any laws pertaining to Department of Corrections employees that prohibit political activities such as being active in any manner in any candidacy for public office including one's own candidacy.
 
 
 
 
 
 

Ronald E. Crowe

Executive Director