This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 3, 1999, basing its approval solely on the facts and circumstances stated herein.

May an elected county prosecuting attorney simultaneously serve as a member of the school district board of trustees?

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:

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 (g)(i)(ii)(iii)(iv)(v), (h) and (p)(i)(ii)(iii) states:

"(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.

(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."

Pertinent facts and circumstances in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of this opinion.

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

It is not as such a violation of the state conflict of interest laws for a county prosecuting attorney to simultaneously serve as a member of the school district board of trustees. The finding is based on the county and the school district being separate governmental entities for purposes of the state conflict of interest laws.

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.

It is reasonable to expect that on occasion the school district will be involved with student delinquency or child abuse matters that may ultimately involve the youth court.

As set forth in Code Section 19-23-11 (4), 1972 Mississippi Code Annotated, "The county prosecuting attorney shall have full responsibility for all misdemeanors, youth court proceedings , and all other cases not specifically granted to the district attorney. Provided, however, that in any municipality having a municipal youth court, the municipal prosecutor shall have responsibility for youth court matters in that court. [Emphasis added to bold text]

Therefore based on the above, the simultaneous service as a youth court prosecutor and as a school board member is a circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the county/youth court prosecutor's office and the school district.

In order to avoid this appearance of impropriety problem, the requestor is advised to totally and completely recuse himself from any matter that might come before the school board that has the potential of also becoming a matter for the youth court prosecutor should the requestor accept the appointment to the school board of trustees.

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 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.

The Rules of Professional Conduct of the Mississippi Bar might also prohibit such dual service in particular cases. The requestor is referred to the Mississippi Bar for an opinion in that regard.

The requestor is advised to contact the State Attorney General's Office regarding whether the holding simultaneously of the public offices of a school board member and county prosecuting attorney is prohibited under the Separation of Powers Doctrine. See Article 1, Section 2, Mississippi Constitution of 1890.
 
 
 
 
 
 

Ronald E. Crowe

Executive Director