This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 4, 2000, basing its approval solely on the facts and circumstances stated herein.
ISSUE 1. May a former county supervisor be employed by the sheriff's department of the county he served within one year of the end of his term?
ISSUE 2. May a former county supervisor be employed by a municipal police department located within the county he served within one year of the end of his term?
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 25-4-103(f)(i)(ii), (g)(i)(ii), (h) 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:
(i) Counties; and
(ii) Municipalities.
(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."
Code Section 25-4-105(2) states:
"(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."
Code Section 25-4-109(1) and (2) states:
"(1) Upon a finding by clear and convincing evidence that any elected public servant or other person has violated any provision of this article, a circuit court of competent jurisdiction may censure the elected public servant or remove the elected public servant from office or impose a civil fine of not more than five thousand dollars ($5,000.00) or both.
(2) Upon a finding by clear and convincing evidence that any nonelected public servant has violated any provision of this article, a circuit court of competent jurisdiction may censure, remove, suspend, or order a reduction in pay or demotion of the nonelected public servant or impose a civil fine of not more than five thousand dollars ($5,000.00) or both."
Code Section 25-4-113 states:
"The attorney general of the state of Mississippi or any governmental entity directly injured by a violation of this act may bring a separate civil action against the public servant or other person or business violating the provisions of this article for recovery of damages suffered as a result of such violation. Further, any pecuniary benefit received by or given by a public servant in violation of this article shall be declared forfeited by a circuit court of competent jurisdiction for the benefit of the governmental entity injured. In the discretion of the court, any judgment for damages or forfeiture of pecuniary benefit may include costs of court and reasonable attorney's fees."
Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
Please accept this letter in my capacity as attorney for the County Board of Supervisors. The question posed is whether it is a violation of Article 4, Section 109 of the Mississippi Constitution or any other constitutional provision or statute for an ex-member of a Board of Supervisors to be employed as a deputy sheriff by a newly-elected Sheriff of the same county. The facts are as follows:
"A" was employed as a deputy sheriff for approximately eight years prior to 1996. At the time of his resignation as a deputy sheriff in 1996, A was employed on a salary basis as "chief deputy." A then served as a member of the Board of Supervisors from January 1996 through January 2000. During that time, A maintained his status as a certified law enforcement officer. May A be employed by a newly elected sheriff as a deputy at a rate of pay less than what he received as "chief deputy" in 1996 and at the same hourly rate of pay as all other certified deputies employed by the newly elected sheriff? The sheriff's budget was not increased from the previous fiscal year and the newly elected sheriff has fewer deputies then his predecessor.
If the answer to the preceding question is no, please set forth any potential penalties involved and also please advise whether anyone other than A may be responsible for any penalties or restitution, including the Sheriff, current Board of Supervisors or any other county officials. Also, if the answer is no, is A prohibited from being employed by any municipality in the county as a law enforcement officer.
I am also sending this same letter to the Mississippi Attorney General's office since I am not sure if this is a matter that will be answered by the Attorney General's office or the Ethics Commission.
Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
ISSUE 1. Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a public servant, including a county supervisor, from having an interest, direct or indirect, in any contract authorized by the board of which he is a member during his term or for one year thereafter. [Emphasis added to bold text]
The Mississippi Supreme Court has held that an order of a public official's board that appropriates funds that directly or indirectly benefit the public official through a governmental contract is part of the contract authorization process.(1)
Clearly, the board of supervisors through the county budget process appropriate the funds for the payment of the salaries for the sheriff's department. Therefore, the employment contracts of the sheriff's department's employees, including the deputies, are authorized in part by the county board of supervisors.(2)
Therefore, Constitutional Section 109 and Code Section 25-4-105(2) absolutely prohibit not only a county supervisor from having an employment contract with the county sheriff's department during his term of office but also absolutely prohibit a former county supervisor from having an employment contract with the county sheriff's department within one year of the end of his term of office. [Emphasis added to bold text]
ISSUE 2. The state conflict of interest laws do not as such prohibit a former member of one governmental entity, in this instance the county board of supervisors, from being employed by a totally separate governmental entity, in this instance a city.
However, a circumstance can exist that would cause a violation of the conflict of interest laws should a former county supervisor be employed by a city within one year of the end of his term of office. [Emphasis added to bold text]
That circumstance involves the existence of contracts between the county and the city in which the former county supervisor as a salaried police officer would have a private pecuniary interest.
In such an instance, the former county supervisor would be prohibited by Constitutional Section 109 and Code Section 25-4-105(2), both cited above, from being employed as a city police officer.
In regard to the requestor's inquiry regarding liability, a public servant violating the conflict of interest laws is subject to the penalties imposed by Code Section 25-4-109, as well as, a civil action for damages and forfeiture of any pecuniary benefit received through the illegal contract as provided for by Code Section 25-4-113. The pecuniary benefit received that will be forfeited is the total amount of salary paid in violation of the state conflict of interest laws. The penalties that may be imposed by a circuit court upon a finding by clear and convincing evidence include removal and a civil fine of not more than $5,000.00.
The requestor is advised that the members of the board of supervisors,
a sheriff or any person that knowingly enters into a contract in violation
of the state conflict of interest laws is subject to "a separate civil
action" for "violating the provisions of this article for recovery of damages
suffered as a result of such violation" as set forth in Code Section 25-4-113.
Ronald E. Crowe
Executive Director
1. See Frazier v. State, 504 So. 2d 675 (1987).
2. See Section 125-19, 1972 Mississippi Code Annotated (amended). "Every sheriff shall have the power to appoint one or more deputies . . . and to fix their compensation, subject to the budget for the sheriff's office approved by the county board of supervisors."