This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 1, 2000, basing its approval solely on the facts and circumstances stated herein.

May a city council member for a city located within the county be employed by the county board of supervisors to coordinate work between the county and the Mississippi Emergency Management Agency?

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(f)(i)(ii), (g)(ii)(iii), (h), (l) 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.

(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.

As attorney for the County Board of Supervisors, I have been directed to write for an opinion with regard to the following situation.

The County is contemplating hiring a person to coordinate work between the County and the Mississippi Emergency Management Agency.

One of the applicants is a Member of the City Council. He plans to continue serving as a member of the City Council while working in this County Position.

Does this present a conflict of interest, which would prevent him from serving in this capacity?

In addition to the above facts, the requestor provided the Commission's staff with a copy of an Interlocal Agreement recently entered into between the County Board of Supervisors and the City Governing Authority. Specifically, this Interlocal Agreement calls for the joint operation and funding of several general governmental functions by the County and City. These general governmental functions are: 1) road, bridges, highways, approaches and related drainage; 2) law enforcement; 3) fire protection; and, (4 parks and recreation.

The Commission formally adopts Advisory Opinion No. 97-056-E in response to this request and by attachment incorporates them into this opinion.

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

It is not as such a violation of the state conflict of interest laws for a city council member to be employed by the county to coordinate work between the county and the Mississippi Emergency Management Agency.

However, as set forth in the attached Advisory Opinion No. 97-056-E, the requestor is cautioned to advise the city council member that a circumstance can exist that would cause a violation of Constitutional Section 109 and Code Section 25-4-105(2), both cited above, should a board member of one governmental entity be employed by a separate governmental entity.

Such a circumstance involves the existence of contracts between the two governmental entities in which the public servant would have an inherent interest and/or a private pecuniary benefit.

Also, the requestor is cautioned to advise the city council member that the city's funding of the county's emergency management function by statutory authority, or otherwise, can be expected to lead to a violation of Constitutional Section 109 and Code Section 25-4-105(2) should a city council member be employed and/or compensation by the county in its emergency management function.

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) would prohibit a city council member from directly or indirectly having an inherent interest and/or receiving a pecuniary benefit from his city or his county employer as a result of any contracts existing between the two governmental entities or as a result of his city's funding of his county employer.

The requestor is cautioned to advise the city council member that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2). Even without a 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.

The requestor has provided the Commission with the above referenced Interlocal Agreement for the joint operation and funding by the county and city of: 1) road, bridges, highways, approaches and related drainage; 2) law enforcement; 3) fire protection; and, (4 parks and recreation. The Interlocal Agreement does not specifically address the joint operation and/or funding of the emergency management function and therefore does not appear to cause the employment of the city council member by the county in its emergency management function to violate Constitutional Section 109 and Code Section 25-4-105(2). However, should the Interlocal Agreement, or any other agreement, result in the county and city jointly operating and/or funding the emergency management function, then the city council member would be in immediate violation of Constitutional Section 109 and Code Section 25-4-105(2) should he be hired by the county to coordinate work with the Mississippi Emergency Management Agency.

Notwithstanding the above, a city council member who is employed by the county in which his city is located must remain keenly aware of the above cited Code Section 25-4-105(1) and Code Section 25-4-101.

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

Therefore, the requestor is cautioned to advise the city council member 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 council that concern his county employer. Certainly, the city council member must totally and completely recuse himself from matters concerning the above referenced Interlocal Agreement between the county and city should he be employed by the county to coordinate work between the county and the Mississippi Emergency Management Agency.

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 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 city council member being employed by the county in which his city is located has the potential of creating suspicion among the public and reflecting unfavorably upon the county and the city. Therefore, this is another reason why the city council member should totally and completely recuse himself from all matters coming before the city council that concern his county employer. Certainly, the city council member must totally and completely recuse himself from matters concerning the above referenced Interlocal Agreement between the county and city should he be employed by the county to coordinate work between the county and the Mississippi Emergency Management Agency.
 
 
 
 
 
 
 
 

Ronald E. Crowe

Executive Director