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 1, 2002, basing its approval solely on the facts and circumstances stated herein.

May a city's superintendent of its solid waste department, who also serves as commissioner for the regional solid waste authority, simultaneously serve as a member of the county board of supervisors if the city, county and regional solid waste authority have an interlocal agreement to operate and maintain a solid waste transfer station?

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)(i)(ii), (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:

(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.

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

I am requesting another opinion about being a candidate for the office of Supervisor for the County. I am currently employed by the City as Superintendent of Solid Waste Department.

I am sending you a copy of the only agreement that I know the City and County are in together concerning Solid Waste. I also am a Commissioner on a Regional Waste Management Authority. I would like to know if these two things are in violation of any State Code from what the Ethics Commission can read.

I know that election for County Supervisors will not be held until 2003, but I wanted to be in a position to offer myself as a candidate; therefore, I am requesting another opinion from the Ethics Commission on the additional information I have enclosed. So when I make the request to the City Board of Aldermen to place my name in nomination I will have sufficient information for the Mayor and Board to make an informed decision on my request.

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

As referenced in the requestor' s letter, the requestor was issued the attached Advisory Opinion No. 01-096-E on the same question with similar but not exactly the same facts as are now provided. The facts presented herein differ from those set forth in Advisory Opinion No. 01-096-E in that the requestor now identifies himself as a member of a regional solid waste management authority (RSWMA) and has enclosed with his request letter a copy of an interlocal agreement in which the RSWMA contracts with the city and county regarding their operation of a transfer station owned by the RSWMA. Although the enclosed interlocal agreement refers to another agreement entered into between the city and county, the requestor did not enclose the city and county agreement with his current request letter. ¹

As set forth in the attached advisory opinion, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, would prohibit the requestor, as a county supervisor, from directly or indirectly having an inherent interest and/or receiving a personal or pecuniary benefit from his county or his city employer as a result of any contracts existing between the two governmental entities authorized during his term as a supervisor, or within one year thereafter.

Based on the requestor's supplied facts and interlocal agreement, the requestor, as a member of the county board of supervisors, would have a prohibited interest in the interlocal agreement as the city's solid waste department superintendent at the time the county board of supervisors authorizes or re-authorizes the interlocal agreement with the city and the RSWMA concerning the operation of the transfer station by the city and county.

Although a copy of the agreement between the city and the county was not provided, it is anticipated that it addresses the division of authority between the city and the county in the operation and maintenance of the transfer station. If this is correct, it is expected that the requestor, as a member of the county board of supervisors, would also have a prohibited interest in that interlocal agreement as the city's solid waste department superintendent at the time the county board of supervisors authorizes or re-authorizes that interlocal agreement with the city.

The requestor is advised that the prohibitions imposed by Constitutional Section 109 and Code Section 25-4-105(2) would apply during his term as a supervisor and for one year thereafter. Also, the requestor is advised that approval of a budget as it relates to the solid waste management agreement would constitute authorization or reauthorization of the interlocal agreement.

The only way the requestor could avoid violating Constitutional Section 109 and Code Section 25-4-105(2) would be to resign as the city's solid waste department superintendent prior to the county, the city and/or the RSWMA authorizing or re-authorizing interlocal agreements concerning solid waste management in which the requestor as the city's solid waste department superintendent had an inherent interest and/or receive a personal pecuniary benefit. The requestor' s resigning as a county supervisor would not avoid the violation if the county and city still entered into the inter-local agreement concerning solid waste management within one year of the requestor's resignation from the board of supervisors.

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 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.

An advisory opinion is not the proper process to determine whether or not a violation of the state conflict of interest laws has already occurred. Therefore, this advisory opinion does not address nor does it provide protection from future liability on the issue of the requestor being a member of the RSWMA when the RSWMA entered into an interlocal agreement with the requestor's employer city regarding the operation of its transfer station by the city and county.

The requestor is also advised to contact the State Attorney General's Office regarding whether the holding simultaneously of the public offices of regional solid waste management authority board member and county supervisor is prohibited under the Separation of Powers Doctrine. See Article 1, Section 2, Mississippi Constitution of 1890.

Scott Rankin

Executive Director

1 § 17-17-307. Establishment of regional solid waste management authority.