This Advisory Opinion concerns the following issues 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.

ISSUE 1. May a city street commissioner continue in that position while seeking the office of mayor with the city?

ISSUE 2. May an individual continue to contract with a county to operate its water system as an independent contractor if the individual is elected mayor of a city located inside the county?

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 25-4-101 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(c), (d), (e), (f)(i)(ii), (g)(i)(ii), (h), (l) and (p)(i)(ii)(iii) states:

"(c) 'Business' means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a nonprofit corporation or other such entity, association or organization receiving public funds.

(d) 'Business with which he is associated' means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.

(e) 'Compensation' mean money or thing of value received, or to be received, from any person for services rendered.

(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.

(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 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(1) and (2) 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.

(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."

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 information regarding local government. I am presently employed by the City as Street Commissioner. I plan to enter the running for the position of mayor of the City. As I allowed to continue my regular employment while campaigning for the mayor position?

I also contract with the County as operator of their water system as a self employed individual. Would that be a conflict between contracting this job and holding the office of mayor.

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

Regarding ISSUE 1 and ISSUE 2, the requestor is advised that the Commission has consistently held that mayors of code chartered municipalities are board members for purposes of the conflict of interest laws. They are considered working members of their boards of aldermen with discretion and superintending powers and duties affecting their municipalities.

ISSUE 1. The state conflict of interest laws will not require the requestor to resign as the city's street superintendent should the requestor qualify as a candidate for the office of mayor with the city.

Notwithstanding the above, the requestor must remain keenly aware of Code Section 25-4-105(1) and Code Section 25-4-101, both cited above.

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.

Code Section 25-4-101 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.

In order to avoid a violation of Code Section 25-4-105(1) and to comply with the public policy mandate set forth in Code Section 25-4-101, the requestor may not campaign, directly or indirectly, during the hours he is being compensated by the city as its street commissioner. In addition, the requestor may not use his employment position with the city, the city's equipment, or any other city resources to benefit his campaign for mayor.

Also, the requestor is advised that Constitutional Section 109 and Code Section 25-4-105(2), both cited above, will absolutely prohibit the requestor from being employed by the city in any capacity, including street commissioner, or from contracting with the city in any other manner while serving as the city's mayor. This prohibition will apply during the requestor's term and for one year thereafter.

The Commission suggests that the requestor also contact the State Attorney General's Office and the Secretary of State's Office regarding any laws outside of the state conflict of interest laws that might prohibit or restrict his seeking the office of mayor while an employee of the city.

ISSUE 2. The conflict of interest laws do not as such prohibit a member of one governmental entity from being an independent contractor with a totally separate governmental entity.

Therefore in this instance, the requestor would not as such be prohibited from continuing his county contract should he be elected mayor as the city and the county are separate governmental entities as defined in the above cited Code Section 25-4-103(g)(h).

However, a circumstance can exist that would cause a violation of the state conflict of interest laws should a member of one governmental entity be an independent contractor with another governmental entity.

That circumstance involves the existence of contracts between the two governmental entities, in this case the municipality and county, in which the public servant, as the operator of the county water system and as the mayor of the city, would have a private pecuniary interest.

Therefore, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, would prohibit the requestor, if elected mayor, from being interested, directly or indirectly, in the county contract as water system operator or any other contract with the county should the contract be authorized by the city during his term as mayor or within one year thereafter. The requestor being directly or indirectly paid any compensation by the city as the operator of the county water system would be considered an authorization by the city's governing authority of the county contract.⁽¹⁾

For example, should the city have an interlocal agreement with the county for water services, then certainly Constitutional Section 109 and Code Section 25-4-105(2) would prohibit the requestor from simultaneously contracting with the county to be its water system operator and serving as the city's mayor when the interlocal agreement or any funding associated with the interlocal agreement is approved by the city during the requestor's term or within one year thereafter.

The requestor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2). Even without the board member's vote, the authorization by the member's board nonetheless results in a contract in which the board member has a prohibited interest.

Notwithstanding the above, an individual serving as the mayor of a city located within a county that the individual also contracts with must remain keenly aware 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.

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. An abstention is a vote with the majority of the governmental entity's board and therefore does not qualify as a recusal.

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 other 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 governmental entity's board should state the public servant left the meeting by showing him or her absent for that matter.

Therefore, the requestor is advised that the only way he can be certain to avoid violating Code Section 25-4-105(1) is to recuse himself from all matters coming before the city's governing authority that concern the county should he be elected mayor and continue with his contract with the county after his election.

Again, the requestor is reminded that a recusal will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2).

Ronald E. Crowe

Executive Director

1. The Mississippi Supreme Court, in Frazier v. State, 504 So . 2d 675 (1987), 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.