This Advisory Opinion concerns the following issues 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.

ISSUE 1. May a captain with the city police department serve as a county E-911 commissioner when the city has contracted for its E-911 service through the county?

ISSUE 2. May a director of an emergency ambulance service serve as a county E-911 commissioner if the emergency ambulance service contracts to dispatch all E-911 calls for the county?

ISSUE 3. May a nurse with a regional hospital serve as a county E-911 commissioner?

ISSUE 4. May a county E-911 commissioner's son be employed by the county sheriff's department and his daughter-in-law be employed as the county E-911 director?

ISSUE 5. May an executive of a telephone corporation serve as a county E-911 commissioner when the telephone corporation leases the equipment for E-911 services to the county?

ISSUE 6. May a volunteer fireman serve as a county E-911 commissioner?

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(a), (b), (c), (d), (e), (f)(i)(ii), (g)(i)(ii)(v), (h), (i), (k)(i)(ii), (l), (p)(i)(ii)(iii) and (q) states:

"(a) 'Authority' means any component unit of a governmental entity.

(b) 'Benefit' means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.

(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;

(ii) Municipalities; 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.

(i) 'Income' means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.
 
 
 
 

(k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).

(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.

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

Code Section 25-4-105(1), (2) and (3)(a) 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.

(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 in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of this opinion.

ISSUE 1. It is not as such a violation of the state conflict of interest laws for a city police department employee to serve as a county E-911 commissioner.

Notwithstanding the above, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a member of a governmental board, including an E-911 commissioner, from having an interest, direct or indirect, in any contract authorized by his board during his term or within one year thereafter.

The city police department employee would have a prohibited interest, as anticipated in Constitutional Section 109 and Code Section 25-4-105(2), in the E-911 contract between the city and the county authorized by the E-911 commission of which he or she is a member if his duties as a city police department employee are related to the E-911 contract.

ISSUE 2. Constitutional Section 109 and Code Section 25-4-105(2), both cited above, will absolutely prohibit the director of the emergency ambulance service from serving on the E-911 commission should the emergency ambulance service contract with the county to provide E-911 services.

The emergency ambulance service will be prohibited by Constitutional Section 109 and Code Section 25-4-105(2) from contracting with the county to provide E-911 services for one year after the director of the emergency ambulance service resigns from the E-911 commission.

Also, if the existing contracts between the emergency ambulance service and the city and county are contracts authorized by the E-911 commission then the director of the emergency ambulance service is in violation of Constitutional Section 109 and Code Section 25-4-105(2).

Also, Code Section 25-4-105(3)(a), cited above, prohibits the director of the emergency ambulance service from having a material financial interest in the emergency ambulance service should it be a contractor with the county as the director of the emergency ambulance service is a public servant of the county.

A material financial interest is defined in the above cited Code Section 25-4-103(k)(i)(ii).

ISSUE 3. A nurse of a regional hospital is not as such prohibited from being a county E-911 commissioner.

Should any contracts exist in the future between the regional hospital and the county for E-911 services, then the nurse could violate Constitutional Section 109 and Code Section 25-4-105(2) as set forth in the above ISSUE 1 and ISSUE 2.

ISSUE 4. It is not as such a violation of the state conflict of interest laws for a county E-911 commissioner's son to be employed by the county sheriff's department.

However, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, will result in a violation for the E-911 commissioner should the E-911 service contract with the county sheriff's department to provide E-911 services and the son's employment with the county sheriff's department be related to the E-911 service contract with the county sheriff's department if the facts are such that the E-911 commissioner has an interest in the son's employment contract with the county sheriff's department.

In order for the E-911 commissioner not to be interested in the E-911 service contract with the county sheriff's department by way of his son's employment with the county sheriff's department, the E-911 commissioner must be totally and completely financially independent from his son.

The question of whether the E-911 commissioner's son is financially dependent upon the E-911 commissioner requires an evaluation of all the facts and circumstances.

Certainly, a child and the child's spouse would be financially dependent of an E-911 commissioner should they live in his household or be receiving other financial assistance from him. The facts presented by the requestor do not indicate in this instance whether the son lives in the E-911 commissioner's household or receives other financial assistance from him.

Also, the facts submitted by the requestor are not sufficient to determine if the E-911 commissioner would have an interest, direct or indirect, in the E-911 service contract with the county sheriff's department by way of his son's employment contract with the county sheriff's department in violation of Constitutional Section 109 and Code Section 25-4-105(2). However, the following are some examples that could result in the E-911 commissioner having an interest, direct or indirect, in the county sheriff's department's E-911 service contract by way of his son's employment contract with the county sheriff's department. The son leased or rented property from the E-911 commissioner; was a debtor of the E-911 commissioner; lived on property owned by the E-911 commissioner; or, co-owned a business with the E-911 commissioner. The above examples should not be considered as a complete list of circumstances that could result in the E-911 commissioner having an interest, direct or indirect, in the county sheriff's department's E-911 service contract by way of his son's employment contract with the county sheriff's department.

The question of the daughter-in-law being employed by the E-911 commission is a much more serious question.

The E-911 commissioner is advised that the Commission has consistently held that a benefit accruing to one spouse accrues equally to the other. Therefore, any pecuniary benefit accruing to the E-911 commissioner's daughter-in-law also accrues to the E-911 commissioner's son.

As set forth above, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit an E-911 commissioner from having an interest, direct or indirect, in a contract authorized by his commission.

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) would prohibit the E-911 commission's employment of the E-911 commissioner's daughter-in-law if the E-911 commissioner was directly or indirectly interested in the daughter-in-law's employment. In order for the E-911 commissioner to not be interested in the daughter-in-law's employment with the commission, the E-911 commissioner must be totally and completely financially independent from his daughter-in-law and son as described above.

Notwithstanding the above, the requestor is cautioned to advise the E-911 commissioner to remain keenly aware of the above cited Code Section 25-4-105(1).

Code Section 25-4-105(1) prohibits an E-911 commissioner from using his position to obtain a pecuniary benefit for his relatives.

Therefore, the E-911 commissioner may not in any way be involved in the commission's decision to employ his daughter-in-law should it be determined that the E-911 commissioner 's daughter-in-law and son are financially independent from him and that the E-911 commissioner is not interested, directly or indirectly, in the daughter-in-law's employment contract with the commission. In addition, the E-911 commissioner may not be involved in any decisions of the commission concerning pay raises or the increasing of other benefits that would benefit the E-911 commissioner's daughter-in-law.

To avoid using his official position to obtain a pecuniary benefit for his relatives, the E-911 commissioner must totally and completely recuse himself from all subject matters providing a pecuniary benefit to his daughter-in-law. 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 a 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 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, a 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.

The Nepotism Law, Code Section 25-1-53, is an area of state law outside the jurisdiction of the Commission. The requestor is advised to contact the Office of the Attorney General concerning how the Nepotism Law may affect the daughter-in-law's employment by the commission.

ISSUE 4 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, the employment of an E-911 commissioner's daughter-in-law by the commission has the potential of creating suspicion among the public and reflecting unfavorably upon the city. Therefore, such circumstances should be avoided when possible. However, Code Section 25-4-101 is another reason why the E-911 commissioner must totally and completely recuse himself from all discussions, actions and decisions concerning his daughter-in-law's employment contract with the commission when such circumstances cannot be avoided.

The E-911 coordinator/spouse and the sheriff's department employee/spouse, i. e. the son and daughter-in-law of the E-911 commissioner, being simultaneously employed by the county is not as such a violation of the state conflict of interest laws.

However, both the E-911 coordinator/spouse and the sheriff's department employee/spouse are advised that Code Section 25-4-105(1), cited above, prohibits them from using their respective public positions to obtain a pecuniary benefit for each other.

ISSUE 5. Constitutional Section 109 and Code Section 25-4-105(2), both cited above, absolutely prohibit the executive of the telephone corporation serving on the E-911 commission when the county's E-911 equipment is leased from the telephone corporation employing him.

ISSUE 6. It is not as such a violation of the state conflict of interest laws for a volunteer fireman to serve as a county E-911 commissioner. This is with the understanding that the volunteer fireman is not an officer in the volunteer fire department and the E-911 commission does not contract with the volunteer fire department.

Notwithstanding the above, the volunteer fireman is advised to totally and completely recuse himself from all matters concerning the volunteer fire department that come before the E-911 commission in order to avoid violating Code Section 25-4-105(1), cited above, and to comply with the public policy mandate set forth in Code Section 25-4-101, cited above. A total and complete recusal is discussed above.

The requestor is cautioned to advise all of the E-911 commissioners that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2) or (3)(a). Even without a county E-911 commissioner's vote, the authorization by the E-911 commission nonetheless results in a contract in which a county E-911 commissioner has a prohibited interest. [Emphasis added to bold text]

An advisory opinion is not the proper process to determine whether or not a violation of the state conflict of interest laws has already occurred. An investigation is the only method whereby a determination can be made as to whether probable cause exists to believe that the economic development district board member and/or the limited partnership's contracts with the district have violated the state conflict of interest laws. Therefore, this advisory opinion does not provide any protection from civil or criminal liability for any of the E-911 commissioners addressed herein for violations of the state conflict of interest laws that have occurred prior to the issuance of this opinion. [Emphasis added to bold text]
 
 
 
 

Ronald E. Crowe

Executive Director