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 an individual simultaneously serve as the county prosecuting attorney appointed by the board of supervisors and the mayor of a municipality located within the county he serves as prosecutor?

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), (e), (f)(i)(ii), (g)(i)(ii)(v), (h), (l) and (p)(i)(ii)(iii) states:

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

(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.

(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), (2) and (5) 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.

(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information."

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 presently the County Prosecutor. In the County, the county prosecutor is appointed by the board of supervisors. This is part-time position, and my duties include prosecuting misdemeanor cases in the County Justice Court, prosecuting any appeals from justice court to the Circuit Court of the County, and all preliminary hearings in justice court. I do not prosecute the Town.

I am considering running for Mayor of the Town (which is in the County). I spoke with Mr. Scott Rankin earlier today and he advised that I would have time to get a formal opinion prior to the qualifying deadline which is March 2, 2001. I would like your written opinion concerning the following:

May I run for and hold the office of Mayor for the Town, and still continue as the County Prosecutor? The post of mayor in the Town is not considered a full-time job, and will not interfere with my county prosecuting duties.

From my research on this topic, it seems to me that mayor and prosecutor are both in the executive branch of government. Therefore, it appears to me that an individual may hold both positions simultaneously without being in violation of Mississippi's conflict of interest laws or Art. I, §2 of the Mississippi Constitution of 1890. I am enclosing a copy of an Attorney General's opinion on this issue, cited as 1983 WL 43224 (Miss. A. G.) for your reference.

The Commission formally adopts Advisory Opinion No. 93-028-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 the attached advisory opinion, it is not as such a violation of the state conflict of interest laws for an individual to simultaneously serve as the county prosecuting attorney and as mayor of a municipality located within the county the individual serves as prosecutor.

This finding is based on the county and the municipality being separate governmental entities for purposes of the state conflict of interest laws as set forth in the definitions found in the above cited Code Section 25-4-103(g)(i)(ii)(v) and (h).

Notwithstanding the above, the requestor is advised to remain keenly aware of the above cited Code Section 25-4-105(1) and (5) and the above cited Code Section 25-4-101 should he be elected as the town's mayor.

Code Section 25-4-105(1) prohibits a public servant from using his official position to obtain a pecuniary benefit for himself.

Therefore, the requestor must be certain to avoid using his current official position as county prosecuting attorney in his campaign for mayor.

Also, should the requestor be elected as the town's mayor, then the requestor should totally and completely recuse himself from any matter coming before the town's governing authority that concerns his county employer in order to be certain to avoid violating Code Section 25-4-105(1). In this instance, the requestor's county employer is the board of supervisors which appoints him to the position of county prosecuting attorney.

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.

Code Section 25-4-105(5) prohibits a public servant from using information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself or any other person.

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 fully comply with the public policy mandate set forth in Code Section 25-4-101, the requestor should totally and completely recuse himself in the following circumstances should he be elected as the town's mayor.

First, the requestor should totally and completely recuse himself from any matters coming before the town's governing authority that concern the board of supervisors which appoints him to the position of county prosecuting attorney.

Also, the requestor should totally and completely recuse himself as the county's prosecutor from any case concerning a person arrested or charged with a crime by the town's law enforcement officers.

In addition, the requestor is advised 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 mayor of a municipality serve in a position with a separate governmental entity such as a county.

Such a circumstance involves the existence of a contract between the two governmental entities authorized during the mayor's term or one year thereafter in which the mayor would have an interest, direct or indirect.

As an example, the requestor as the town's mayor and as the appointed county prosecutor could certainly be considered to have a prohibited interest in an interlocal agreement between the county and the town in which the county agreed to provide prosecutorial assistance to the town through the county prosecuting attorney's office if the town agreed to provide funding to the county prosecuting attorney's office.

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 a mayor's involvement, the authorization by the mayor's municipality's governing authority nonetheless results in a contract in which the mayor has a prohibited interest.

Notwithstanding the above, it is unclear to the Commission how the requestor could be fulfilling his duties as both the county prosecuting attorney and mayor at all times as required by statute. This is especially true in light of the instances in which the requestor should be recusing himself as discussed above. The Commission advises the requestor to give serious consideration to this concern before qualifying to be a candidate for mayor.

As indicated in the requestor's letter, the question whether an attorney would violate the Separation of Powers Doctrine, Article 1, Section 2, Mississippi Constitution of 1890, should he simultaneously hold the public offices of county prosecuting attorney and mayor must be answered by an Attorney General's opinion.

The requestor is also advised to contact the Mississippi State Bar regarding whether an attorney simultaneously holding the public offices of county prosecuting attorney and mayor is prohibited or restricted by the Rules of Professional Conduct.
 
Ronald E. Crowe

Executive Director