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

ISSUE 1. May a body shop in which a county justice court judge is a partner do repair work on the county's sheriff's department's vehicles?

ISSUE 2. May a body shop in which a county justice court judge is a partner do repair work on a city's police department's vehicles?

ISSUE 3. May a body shop in which a county justice court judge is a partner do repair work on the Department of Public Safety's vehicles?

Your opinion request to the Office of the Attorney General dated February 12, 2001, was referred by that Office to the Mississippi Ethics Commission on February 14, 2001, as your request involves the above issue that concern the Mississippi conflict of interest laws.

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

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

(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.

(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;

(iii) All school districts;

(iv) All courts; 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.

(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."

Code Section 25-4-105(1), (3)(a) and (4)(d) 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:

(d) May be a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which is a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent: (i) where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws; or (ii) where the contractual relationship involves the further research, development, testing, promotion or merchandising of an intellectual property created by the public servant."

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.

I presently serve as Justice Court Judge in County, Mississippi. I am interested in receiving an Attorney's General's opinion interpreting Section 25-4-105 of the Mississippi Code Annotated (1972), and in particular, subsection 4 of that code section.

Subsection 4 of Section 25-4-105 allows an elected official to be a contractor or vendor with any authority of the governmental entity other than the authority of the governmental entity which he is a member, officer, employee or agent where such contract is let to the lowest and best bidder after competitive bidding and after three or more legitimate bids are received or where the goods, services or property involved are reasonably available from two or fewer commercial sources, provided such transaction comply with the Public Purchases Law.

I am interested in knowing the effect of the statute where the Sheriff's Office of the County, Mississippi, the City Police Department, or the Mississippi Highway Patrol allows a body shop, in which I am a partner, to do property damage work on their damaged vehicles.

Since the County Justice Court is not associated with any of these entities, I am interested in knowing whether the Justice Court of County, Mississippi, would be a "separate entity" as defined by the statute, from the County Sheriff's Department.

The Commission formally adopts Advisory Opinion No. 97-141-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.

ISSUE 1. As set forth in the attached advisory opinions, Code Section 25-4-105(3)(a), cited above, prohibits a company owned, in whole or in part, by a justice court judge from doing business with the county the justice court judge is elected to serve. This would certainly include a justice court judge's body shop doing repair work on the county's vehicles operated by the sheriff's department.

The only exception to Code Section 25-4-105(3)(a) that would be applicable in this instance is found in Code Section 25-4-105(4)(d), cited above. The applicable exception in Code Section 25-4-105(4)(d) provides that a public servant's business may be a contractor, subcontractor or vendor with the authority of the governmental entity the public servant is an officer of "where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws."

It is the Commission's opinion that the geographical boundary of a local governmental entity is not sufficient by itself to set in motion the above exception. In most if not all areas of the state, goods and services are reasonably available in a neighboring city, county or district.

Therefore, a body shop is not a business that would be considered as one that provides goods or services that are reasonably available from two (2) or fewer commercial sources and thereby the exception set forth in Code Section 25-4-105(4)(d) is not applicable to the requestor's circumstance.

Code Section 25-4-105(3)(a) absolutely prohibits the requestor's body shop from doing repair work on vehicles owned by the county including those operated by the sheriff's department.

ISSUE 2. It is not as such a violation of the state conflict of interest laws for a justice court judge's body shop to do business with a city that is located in the county the justice court judge is elected to serve.

However, Code Section 25-4-105(3)(a) would prohibit a justice court judge's body shop from doing business with a city if the city's governing authority has appointed the justice court judge as the municipal judge for the city as authorized in Code Section 21-23-5.

If a justice court judge is not serving as the city's municipal judge, the justice court judge must still remain keenly aware of Code Section 25-4-105(1), cited above, should his body shop do business with a city that is located in the county he is elected to serve.

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 should recuse himself from any matter coming before the county justice court that concerns the city that does business with the justice court judge's body shop.

ISSUE 3. This issue presented by the requestor 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.

Traffic violations brought by the Mississippi Department of Public Safety's officers are almost exclusively, if not exclusively, heard in the County Justice Courts.

Therefore, a justice court judge's body shop doing repair work on the Mississippi Department of Public Safety's vehicles certainly can be expected to create suspicion among the public and reflecting unfavorably upon the County Justice Court and the Mississippi Department of Public Safety.

Based on the above, the public policy mandated set forth in Code Section 25-4-101 is sufficient to prohibit a justice court judge's body shop from repairing vehicles owned by the Mississippi Department of Public Safety and to prohibit the Mississippi Department of Public Safety from having its vehicles repaired at a justice court judge's body shop.

Also, the requestor is advised to contact the Commission on Judicial Performance to determine whether the circumstances presented in the above issues would be contrary to the Code of Judicial Conduct.
 

Ronald E. Crowe

Executive Director