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 justice court clerk and/or her spouse operate a collection agency that collects unpaid delinquent case balances for justice courts and municipal courts, excluding the justice court for which the court clerk currently works?

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 (c), (d), (f)(i)(ii), (g)(i)(ii)(iv), (l), (p)(i)(ii)(iii) and (q) states:

"(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; and

(iv) All courts.

(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.

(q) "Relative" means the spouse, child or parent."

Code Section 25-4-105(1) and(3)(a) 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."

This correspondence is to request an opinion from the Mississippi Ethics Commission. I am interested in opening a collection agency that deals primarily with the Justice Courts and Municipal Courts on their delinquent cases that have unpaid balances, excluding my County Justice Court.

I am presently serving as Justice Court Clerk of the County and I am inquiring as to whether it would be unethical to handle collections such as this. If so, upon my spouse's retiring from the a Department of the State, would it be unethical for him to own such a company still excluding my County Justice Court?

The requestor's facts state that a collection business owned by the requestor and/or the requestor' s spouse will not do business with the justice court that the requestor serves as justice court clerk. Therefore, it is not a violation of the state conflict of interest laws for a collection business owned by ajustice court clerk and/or the clerk's spouse to do business with counties and cities that do not employ the justice court clerk.

Code Section 25-4-105(3)(a), cited above, does prohibit a public servant from having a material financial interest in a business that is a contractor, subcontractor or vendor with the governmental entity that the public servant serves as a member, an officer, an employee or an agent.

The above cited Code Section 25-4-103(c), in part, defines a business as 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.

The above cited Code Section 25-4-103(k) defines a material financial interest as a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other.

Therefore, Code Section 25-4-105(3)(a) prohibits a company owned by ajustice court clerk, or her spouse, from doing business with the justice court the justice court clerk is appointed to serve.

Code Section 25-4-105(l), cited above, prohibits a public servant, including a justice court clerk, from using his or her official position to obtain a pecuniary benefit for a business with which he or she, or a relative is associated. Emphasizing another reason the justice court clerk nor her spouse could contract with the justice court employing the clerk.

It is the Commission's opinion that it would be impossible for a justice court clerk to not select, review or approve the need of a contractor to perform such services for the justice court; supervise, monitor and evaluate a contractor performing such services for the justice court; and, have authority over the invoice or payment processes pertaining to a contractor performing such services for the justice court employing the clerk. Therefore, it would be impossible for a collection business owned by a justice court clerk and/or spouse to contract with the county justice court that employs the clerk without violating Code Section 25-4-105(1).

Additionally, 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 collection business owned by a justice court clerk and/or spouse contracting to collect unpaid delinquent case balances for the justice court the clerk services has the potential of creating suspicion among the public and reflecting unfavorably upon county justice court. Therefore, such a circumstances should be avoided to fully comply with the public policy mandate set forth in Code Section 25-4-101.

In summary, the state conflict of interest laws do not prohibit a justice court clerk and/or her spouse from operating a collection agency that collects unpaid delinquent case balances for justice courts and municipal courts, as long as their business excludes the justice court for which the court clerk currently works.

Scott Rankin

Executive Director