This Advisory Opinion concerns the following issue 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.

May a Mississippi Department of Transportation employee simultaneously serve as a mayor?

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)(iv), (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:

(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) 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 in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of 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 an employee of a state department to simultaneously serve as a municipality's mayor.

Notwithstanding the above, 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 municipality's mayor be employed by a state department such as the Mississippi Department of Transportation.

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

Constitutional Section 109 and Code Section 25-4-105(2) would prohibit a mayor from directly or indirectly having an inherent interest and/or receiving a pecuniary benefit from his employing state department as a result of any contracts existing between the two governmental entities authorized during the mayor's term or within one year thereafter.

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 the mayor's involvement, the authorization by the mayor's city board nonetheless results in a contract in which the mayor has a prohibited interest. In other words, the requestor is advised that his action as mayor to "refrain from any active role" would not be sufficient for him to avoid violating Constitutional Section 109 and Code Section 25-4-105(2). [Emphasis added to bold text]

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

Code Section 25-4-105(1) prohibits a public servant from using his or her official position to obtain a pecuniary benefit for himself, a relative or a business with which he or she is associated.

Code Section 25-4-101, set forth above, 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 state employee/mayor participating in discussions and/or actions of the municipality's governing authority concerning his or her employing state department has the potential of creating suspicion among the public and reflecting unfavorably upon the state agency and the municipality.

Therefore, the requestor is advised that the only way he can be certain to avoid violating Code Section 25-4-105(1) and that he can fully comply with the public policy set forth in Code Section 25-4-101 is to totally and completely recuse himself from any discussions and/or actions involving the Mississippi Department of Transportation coming before the municipality's governing authority should he be elected mayor.

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.

The requestor is again cautioned that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2).

Since the Mississippi Department of Transportation does receive federal funds, the requestor was wise to contact the United States Office of Special Counsel concerning whether The Hatch Act would prohibit him from campaigning for municipal office or holding an elected municipal position while an employee of the Department.

In addition, the requestor is advised to contact the State Attorney General's Office regarding any state laws outside the conflict of interest laws that might affect his circumstance.
 

Ronald E. Crowe

Executive Director