This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 4, 2001, basing its approval solely on the facts and circumstances stated herein.

May a county deputy sheriff serve as a member of the board of aldermen?

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 25-4-103(f)(i)(ii), (g)(i)(ii), (h) 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:

(i) Counties; and

(ii) Municipalities.

(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.

(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(2) states:

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

I am City Attorney for the City, and I have been asked the question concerning our upcoming city election. I am trying to make sure one of our candidates can keep his current job and serve as City Alderman if he is elected.

The Mayor of the City asked for an opinion from the Attorney General, and the Attorney General's office told the Mayor that the City needed to contact your office. My question is:

Can a County Deputy Sheriff serve as Alderman for the City, if elected?

I look forward to receiving your response, and I thank you for your help with this matter.

The Commission formally adopts Advisory Opinion No. 00-094-E, with attachments, 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.

First, the conflict of interest laws do not as such prohibit a member of one governmental entity from being employed by a totally separate governmental entity.

However, as set forth in the attached opinions, a circumstance can exist that would cause a violation of the conflict of interest laws should a member of one governmental entity be employed by another governmental entity.

That circumstance involves the existence of contracts between the two governmental entities, in this case the City and County, in which the public servant, as a salaried county deputy sheriff and alderman, would have a private pecuniary interest.

In the attached Advisory Opinion No. 97-056-E, the Commission found that an existing interlocal agreement between the county and the city whereby the sheriff's department provided the city with police protection was sufficient to cause a city council member/deputy sheriff to violate Constitutional Section 109 and Code Section 25-4-105(2), both cited above.

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) will prohibit the deputy sheriff from serving as an alderman if and when the city during his term or within one year thereafter enters into an interlocal agreement with the county in which he would have a private pecuniary interest such as the county sheriff's department providing police protection or jail services to the city.

Notwithstanding the above, the requestor is cautioned to advise the deputy sheriff to remain keenly aware of the Code Section 25-4-105(1) and Code Section 25-4-101, both cited above.

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 governmental 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 governmental entity's board should state the public servant left the meeting by showing him or her absent for that matter.

Therefore, the requestor is cautioned to advise the deputy sheriff that the only way he can be certain to avoid violating Code Section 25-4-105(1) is to recuse himself from all matters coming before the board of aldermen that concern his county employer should he be elected.

The issue presented by the requestor 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, a county employee's direct or indirect involvement with matters concerning his employing county that are before the board of aldermen of which he is also a member has the potential of creating suspicion among the public and reflecting unfavorably upon the city and the county. Therefore, this is another reason why the deputy sheriff should totally and completely recuse himself from any matter concerning his county employer coming before the board of aldermen should he be elected to the board of aldermen.

The requestor is cautioned to advise the deputy sheriff that should he be elected to the board of aldermen 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 board member's vote, the authorization by the member's board nonetheless results in a contract in which the board member has a prohibited interest.
 

Ronald E. Crowe

Executive Director