This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 2, 2001, basing its approval solely on the facts and circumstances stated herein.

May the board attorney for the county board of supervisors simultaneously serve as a youth court referee/judge?

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)(iv), (h), (l) 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; and

(iv) All courts.

(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), (3)(a) and (4)(h) 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.

(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.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee."

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 this letter to ask for an ethics opinion to insure that the situation I am in does not violate any of the Mississippi ethics laws.

My employment situation in the County is this: I am county board attorney for the County Board of Supervisors, as well as youth court referee. Of course, the board hires its attorney. The youth court referee, however, is appointed by the senior chancellor in the chancery court district. Referees act in the place of chancellors as designees. Additionally, salary for the youth court referee is set by order of the senior chancellor.

Since my employers are completely different, and the board has nothing to do with my salary as referee, I had not thought that there would be a conflict. However, I just want to make sure so that I can alleviate the problem immediately, if there is one. My question stems from reading the summary of Ethics Opinions No. 057 handed out by you at the county board attorneys CLE meeting.

The Commission formally adopts Advisory Opinion No. 95-139-E in response to this request and by attachment incorporates it into this opinion.

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

As set forth in Advisory Opinion No. 95-139-E, it is not as such a violation of the state conflict of interest laws for the attorney for the county board of supervisors to simultaneously serve as a youth court referee/judge.

As youth court referee/judge, the requestor is appointed by the chancellor who also fixes the compensation as set forth in Sections 43-21-107(3) and 43-21-111, 1972 Mississippi Code Annotated.

As attorney for the board of supervisors, the requestor is employed by the board of supervisors which fixes the annual compensation not to exceed the maximum amount authorized by law as set forth in Section 19-3-47, 1972 Mississippi Code Annotated.

Therefore, the appointing and employing entities being separate authorities results in the requestor's simultaneous holding of the positions of youth court referee/judge and attorney for the board of supervisors not being prohibited by the above cited Code Section 25-4-105(3)(a).

Notwithstanding the above, the requestor should remain keenly aware of the above cited Code Section 25-4-105(1). Therefore the requestor should recuse herself from any matter coming before the board of supervisors that concerns the chancellor and/or the youth court and from any matter coming before the youth court that might concern the members of the board of supervisors.

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.

In order 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 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 detail discussions, made in person, by telephone or by any other means.

Also in order 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.

Ronald E. Crowe

Executive Director