This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on April 7, 2000, basing its approval solely on the facts and circumstances stated herein.
May the county board of supervisors employ the county's chancery clerk to look after the interest of the county in lands the county owns?
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 25-4-103(a), (f)(i)(ii), (g)(i), (h) and (p)(i)(ii)(iii) states:
"(a) 'Authority' means any component unit of a governmental entity.
(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.
(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(3)(a) states:
"(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."
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 writing to request an ethics opinion relating to Section 19-7-15 of the Mississippi Code, 1972. May the Board of Supervisors employ the Chancery Clerk under the afore mention section to look after the interest of the County in lands the County owns?
In this County the Board of Supervisors owns land that local industries are lease purchasing from the County. This land is not Sixteenth Section land.
Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
The Commission's statutory authority to issue advisory opinions to public officials is limited to interpretations of the state conflict of interest laws. Therefore, the Commission may not by advisory opinion interpret Section 19-7-15, 1972 Mississippi Code Annotated (amended).
Notwithstanding this limitation, Section 19-7-15 clearly provides the county board of supervisors the authority to employ a competent person to look after the interest of the county in any lands that may be owned by such county and to pay such person a salary of not exceeding eighteen hundred dollars ($1,800.00) annually for such service and that the county superintendent of education is the only public servant the board of supervisors is given specific authority to employ as caretaker of the county's land.(1)
The Commission has consistently held the opinion that a public servant entering into a separate employment contract with his or her own governmental authority, such as a chancery clerk being employed by the county board of supervisors to serve as caretaker of the county's land, would result in a violation of the above cited Code Section 25-4-105(3)(a).
Also, the Commission has consistently considered and recognized the prevailing case law in this state that apparent conflicting state laws must be read in pari materia. The case law in this state consistently supports the fundamental principle of statutory construction that specific statutes control over general statutes. For example, McCory v. State, 210 So. 2d 877 (Miss. 1968) and Lincoln County v. Entrican, 230 So. 2d 801 (Miss. 1970).
Specifically, in McCaffrey's Food Market, Inc. v. Mississippi Milk Commission, 227 So.2d 459, (Miss. 1969), the State Supreme Court stated, "The rule is well established that where a special and particular statute deals with a special and particular subject its particular terms as to that special subject control over the general statutes dealing with the subject generally."
As stated above, Code Section 19-7-15 does not specifically authorize the county board of supervisors to employ any public servant other than the county superintendent of education to look after the interest of the county in lands the county owns. In other words, Code Section 19-7-15 does not specifically authorize the county board of supervisors to employ the chancery clerk to look after the interest of the county in lands the county owns.
Therefore, Code Section 25-4-105(3)(a) and Code Section 19-7-15 do not appear to this Commission to conflict in any way.
Based on the above, the Commission finds that the board of supervisors' employment of the county's chancery clerk to look after the interest of the county in lands the county owns as anticipated in Code Section 19-7-15 would result in a violation of Code Section 25-4-105(3)(a).
Ronald E. Crowe
Executive Director
1. § 19-7-15. Hiring caretaker of county lands.
The boards of supervisors of the various counties of this state may, in their discretion, employ a competent person to look after the interest of the county in any lands that may be owned by such county other than sixteenth section or lieu lands, or lands acquired under foreclosure proceedings under deeds in trust securing loans of sixteenth section school funds, and to pay such person a salary of not exceeding eighteen hundred dollars ($1800.00) annually for such services. Such salary will be paid out of the revenue derived from such lands, and at the end of the year during which such services are rendered. The boards of supervisors may, in their discretion, employ the county superintendent of education to perform the duties and services provided for herein, and pay such county superintendent the salary provided for herein in addition to the salary as superintendent of education.
Moreover, the boards of supervisors of said counties in this state are hereby authorized in their discretion to pay to the secretary of the superintendents of education in said counties in this state, an additional sum of six hundred dollars ($600.00) per annum out of the revenues derived from such lands in said counties, at the end of the year during which such services are rendered. Said sum of six hundred dollars ($600.00) per annum shall be in addition to the salaries now authorized by law to be paid to said secretaries of the county superintendents of education in this state.