This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on April 5, 2002, basing its approval solely on the facts and circumstances stated herein.

ISSUE 1. May an individual remain town attorney after marrying one of the town alderman?

ISSUE 2. May an individual continue as town attorney after marrying the town alderman for no salary or compensation?

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(e), (f)(i)(ii), (g)(ii), (h), (i), (l), (m), (o), (p)(i)(ii)(iii) and (q) states:

"(e) "Compensation" mean money or thing of value received, or to be received, from any person for services rendered.

(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.

(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.

(i) "Income" means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.

(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.

(m) "Person" means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.

(o) "Public funds" means money belonging to the government.

(p) "Public servant" means:

(i) Any elected or appointed official of the government;

(ii) Any officer, director, commissioner, supervisor, chief, h e a d, 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(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."

Code Section 25-4-109(1) and (2) states:

"(1) Upon a finding by clear and convincing evidence that any elected public servant or other person has violated any provision of this article, a circuit court of competent jurisdiction may censure the elected public servant or remove the elected public servant from office or impose a civil fine of not more than five thousand dollars ($5,000.00) or both.

(2) Upon a finding by clear and convincing evidence that any nonelected public servant has violated any provision of this article, a circuit court of competent jurisdiction may censure, remove, suspend, or order a reduction in pay or demotion of the nonelected public servant or impose a civil fine of not more than five thousand dollars ($5,000.00) or both."

"The attorney general of the state of Mississippi or any governmental entity directly injured by a violation of this act may bring a separate civil action against the public servant or other person or business violating the provisions of this article for recovery of damages suffered as a result of such violation. Further, any pecuniary benefit received by or given by a public servant in violation of this article shall be declared forfeited by a circuit court of competent jurisdiction for the benefit of the governmental entity injured. In the discretion of the court, any judgment for damages or forfeiture of pecuniary benefit may include costs of court and reasonable attorney's fees."

The attorney for the Town has been so employed continuously for more than 15 years. One of our aldermen has been so elected continuously since July, 1989. The alderman and the attorney will be married in a couple of months.

Item I: In view of a possible conflict of interest under Article IV, Section 109, Mississippi Constitution of 1890, may the attorney remain as the town's attorney after the date of marriage?

A review of the Attorney General's Opinions on nepotism indicates that Section 25-1-53, Miss. Code of 1972, does not prohibit employment of the attorney even though the spouse is a member of the Board of Aldermen since the position of attorney is not one of the five (5) prohibited positions listed in the statute. The Town has a population of less than 500 persons and there does not appear to be another attorney in the county available for hire by the town.

Item II: In the event a conflict of interest under Section 109 prevents the attorney from continuing in the employment of the town after the marriage takes place, if the attorney is willing to be the town's attorney for no salary or compensation, could the attorney continue to represent the town?

ISSUE 1: Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a member of a governmental body, such as a member of a board of aldermen, from having an interest, direct or indirect, in a contract authorized by the governmental body of which he/she is a member during their term and for one year thereafter.

In Smith v. Dorsey, 530 So. 2d 5 (1988), the Mississippi Supreme Court held a public official has an indirect prohibited interest in a contract in which the public official's spouse has a direct interest for purposes of Constitutional Section 109 and Code Section 25-4-105(2).

In Frazier v. State, 504 So. 2d 675, (Miss. 1987), the Mississippi Supreme Court set forth the following four elements necessary to apply the Constitutional Section 109 prohibition:

1. Is there a governmental contract with the state, county, municipality or district?

2. Does the public officer have an interest, direct or indirect, in the contract?

3. Is the contract authorized by a law passed or order made by a board or public body of which the public officer is a member?

4. Was the authorizing law or order passed during the public officer's term or within one year after the expiration (or termination) of such term?

The Supreme Court did not require compensation to be one of the elements necessary to violate Constitutional Section 109, only the existence ofa contract. Therefore, Constitutional Section 109 and Code Section 25-4-105(2) clearly prohibit a board of aldermen from authorizing a contract with a spouse of the member of the board whether the spouse is compensated or uncompensated.

The requestor is cautioned to advise the alderman 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.

ISSUE 2: As for the issue of the town attorney continuing to represent the town for no salary or compensation, it appears the attorney would be volunteering his/her services as long as the attorney provided the services without any consideration or benefit accruing to the attorney. In this instance, the board of aldermen would violate Constitutional Section 109 and Code Section 25-4- 105(2) based on the above four elements stated in Frazier v. State. If uncompensated, the attorney
would limit any civil damage recovery should his/her contract be declared void by a court of competent jurisdiction. However, there would still be potential civil damages for compensation paid to the alderman and the civil penalties the court may impose allowed in Code Section 25-4-109 and
25-4-113.

In addition, 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, the town attorney being the spouse of one of the town's board members has 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.

Scott Rankin

Executive Director