This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on March 3, 2000, basing its approval solely on the facts and circumstances stated herein.

ISSUE 1. May the county employ as its victim/witness coordinator for the county youth court the spouse of an employee of the Mississippi Department of Human Services, Division of Youth Services, who is assigned to the county youth court in the capacity of volunteer coordinator/intake officer?

ISSUE 2. May the county employ as its victim/witness coordinator for the county youth court the spouse of the county youth court public defender?

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), (l), (m), (p)(i)(ii)(iii) and (q) 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.

(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.

(m) 'Person' means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.

(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.

(q) 'Relative' means the spouse, child or parent."

Code Section 25-4-105(1) and (5) 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.

(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information."

Pertinent facts and circumstances provided in the form of the requestor's letter, absent identifying data, are set forth as follows 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.

ISSUE 1. It is not as such a violation of the state conflict of interest laws for one spouse to be employed by the Mississippi Department of Human Services as volunteer coordinator/intake officer for the county youth court and the other spouse be employed by the county as victim/witness coordinator for the county youth court.

Notwithstanding the above, the requestor is cautioned to advise both spouses to remain keenly aware of the above cited Code Section 25-4-105(1) and (5).

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.

A total and complete recusal requires that the public servant avoid debating, discussing or taking action on such subject matters with superiors, staff or any other person. 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. Should the matter be subject to being recorded on the minutes of a governing body or board, then those minutes should state the public servant left the meeting by showing him or her absent for that matter.

Code Section 25-4-105(5) prohibits a public servant from using nonpublic information obtained by reason of his official position or employment that could provide a pecuniary benefit to a relative or any other person. The definition of "person" is set forth in the above cited Code Section 25-4-103(m). The definition would include either spouse, the victims, the witnesses, the defendants and the government entity employers.

ISSUE 2. This issue presented by the requestor 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.

Clearly, the county youth court public defender's spouse serving as the county youth court victim/witness coordinator can be expected to create suspicion among the public and reflecting unfavorably upon the county youth court and the county public defender's office. This public policy concern arises from the duties of the county youth court victim/witness coordinator. These duties including, but are not limited to, assisting, coordinating and otherwise working closely with the youth court prosecutor, law enforcement officers, crime victims and prosecution witnesses. Because of this public policy concern, the spouse of the county youth court public defender should not serve as the county youth court victim/witness coordinator.

Also, Code Section 25-4-105(1) and (5) raise concerns in ISSUE 2 similar to those addressed above in ISSUE 1.

In regard to Code Section 25-4-105(5), the concerns are greater in ISSUE 2 because the county youth court victim/witness coordinator will certainly have access to and be aware of information that would certainly be beneficial to or of interest to the county youth court public defender in the representation of children in the youth court alleged to have committed delinquent acts and/or crimes.
 
 
 
 
 
 

Ronald E. Crowe

Executive Director