This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on October 1, 1999, basing its approval solely on the facts and circumstances stated herein.

May a justice court judge serve on a community hospital board of trustees when the hospital is owned by the county the justice court judge is elected to serve?

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 (a), (g)(i)(iv)(v), (h), (l) and (p)(i) states:

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

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

(i) Counties;

(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.

(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 government."

Code Section 25-4-105 (1), (3)(a) and (4)(h) states:

"(1) No public servant shall use his official position to obtain pecuniary benefit for himself other than that compensation provided 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:

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee."

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

Re: Ethics Commission Opinion re: Justice Court Judges serving as hospital non-profit trustees. Your assistance and clarification concerning the above inquiry would be greatly appreciated. Please note my yearly Ethics Commission Statement of Economic Interest clearly lists item number 02 - County General Hospital/County Medical Center under the 'Title or Position' column and - Board Member under the name of city, county, board, commission or agency as an appointed position.

Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is that a justice court judge serving on the county's community hospital's board of trustees is not as such prohibited by the conflict of interest laws.

This opinion is based on the office of justice court judge being in a separate authority of the county governmental entity from that of the county owned community hospital. This finding is based on the exception set forth in the above cited Code Section 25-4-105 (4)(h).

The requestor is cautioned to not use his or her position as justice court judge to obtain the appointment to the hospital board of trustees or to use the hospital board of trustees' position to assist in his or her campaign for justice court judge as to do so would be to obtain a pecuniary benefit in violation of the above cited Code Section 25-4-105 (1).

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.

In order 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.

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 detail discussions, made in person, by telephone or by any other means.

Also in order 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 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 it is 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, a justice court judge hearing matters in his or her court that directly or indirectly concern a community hospital that the judge serves as a board of trustees member is a circumstance that will create suspicion among the public and reflect unfavorably upon the justice court and the community hospital. Therefore, Code Section 25-4-101 precludes the requestor from hearing matters in the justice court that directly or indirectly concern the county owned community hospital which the requestor serves as a board of trustees member.

The requestor has advised the Commission that the State Attorney General has also been contacted regarding this question. It is good that the requestor has contacted the State Attorney General as it appears likely that simultaneously holding the offices of justice court judge and community hospital trustee may violate the Doctrine of Separation of Powers. However, an interpretation of the application of the Doctrine of Separation of Powers is a proper subject for an Attorney General's opinion and not an Ethics Commission's opinion.

Also, the requestor is strongly advised to contact the Mississippi Commission on Judicial Performance to determine how the Code of Judicial Conduct will apply in this instance.
 
 
 
 

Ronald E. Crowe

Executive Director