April 5, 2002
This Advisory Opinion concerns the following issue 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.
May an alderman’s son, who is currently employed as a deputy sheriff, be simultaneously employed as a police officer by the city that the alderman serves?
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)(i)(ii), (h),(l), (p)(i)(ii)(iii) and (q) states:
“(f) ‘Contract’ means:Code Section 25-4-105(1) and (2) states:
(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.
(q) ‘Relative’ means the spouse, child or parent.”
“(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 writing you in my capacity as the Attorney for the Town at the request of the Mayor.
The Deputy Sheriff has indicated he would like to have a part-time law enforcement position with the Town, if a position becomes available.It is my understanding that the Deputy Sheriff is a certified law enforcement officer, who is presently a Deputy Sheriff of a County, but whose Mother is an Alderman of the Town.
Is it lawful for the Town to hire the Deputy Sheriff from an ethical standpoint?We have requested an official opinion from the Attorney General, a copy of which letter is enclosed herewith, as to the legality of same from their standpoint.
Would it be ethical if his Mother voted against his employment and voted against his pay on each period of time?
The Commission formally adopts Advisory Opinions No. 96-089-E and No. 00-096-E in response to this request and by attachment incorporates them into this opinion.
Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.
Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit an alderman from having an interest, direct or indirect, in a contract authorized by his municipality’s board of aldermen.Therefore, Constitutional Section 109 and Code Section 25-4-105(2) would prohibit the city’s employment of the alderman’s son if the alderman was directly or indirectly interested in the son’s employment.
In order for the alderman to not be interested in the son’s employment with the city, the alderman must be totally and completely financially independent from her son.The question of whether the alderman’s son is financially dependent upon the alderman requires an evaluation of all the facts and circumstances.
As set forth in the attached Advisory Opinion No. 96-089-E, a child would be financially dependent on an alderman should he live in his or her household or be receiving other financial assistance from the alderman.The facts presented by the requestor do not indicate, in this instance, whether the son lives in the alderman’s household or receives other financial assistance from her.
Also, the facts submitted by the requestor are not sufficient to determine if the alderman would have an interest, direct or indirect, in her son’s employment contract with the city in violation of Constitutional Section 109 and Code Section 25-4-105(2). However, the following are some examples that could result in the alderman having an interest, direct or indirect, in her son’s employment contract with the city. The son leased or rented property from the alderman; was a debtor of the alderman; lived on property owned by the alderman; or, co-owned a business with the alderman.The above examples are not a complete list of circumstances that could result in the alderman having an interest, direct or indirect, in her son’s contract with the city.
In addition, the requestor is cautioned to advise the alderman to remain keenly aware of the above cited Code Section 25-4-105(1).
Code Section 25-4-105(1) prohibits an alderman from using her position to obtain a pecuniary benefit for her relative.
Therefore, the alderman may not in any way be involved in the board of aldermen’s decision to employ her son as a police officer should it be determined that the alderman’s son is financially independent from her and that the alderman is not interested, directly or indirectly, in the son’s employment contract with the city.In addition, the alderman may not be involved in any decisions of the board of aldermen concerning pay raises or the increasing of other benefits that would benefit the alderman’s son should he be employed by the city.
To avoid using her official position to obtain a pecuniary benefit for her relative, the alderman must totally and completely recuse herself from all subject matters providing a pecuniary benefit to her son. 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 a 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 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, a 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 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 the alderman’s vote, the authorization by the alderman’s board nonetheless results in a contract in which the alderman has a prohibited interest.
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, the employment of an alderman’s son by the city has the potential of creating suspicion among the public and reflecting unfavorably upon the city.Therefore, such circumstances should be avoided when possible.However, Code Section 25-4-101 is another reason why the alderman must totally and completely recuse herself from all discussions, actions and decisions concerning her son’s employment contract with the city if the circumstance is not avoided.
The Nepotism Law, Code Section 25-1-53, is an area of state law outside the jurisdiction of the Commission. Therefore, the requestor was correct in seeking an opinion from the Office of the Attorney General to determine how the Nepotism Law may affect the above issue.
Regarding the question of an individual simultaneously serving as both a deputy sheriff and a city police officer, the requestor is referred to the attached Advisory Opinion No. 00-096-E.
As stated in the Advisory Opinion No. 00-096-E, an individual’s simultaneous employment as acity police officer and a deputy sheriff is not as such a violation of the conflict of interest laws.This is based on the fact that the city and county are two completely separate governmental entities.
Notwithstanding the above, the requestor is cautioned to advise the police officer to remain keenly aware of Code Section 25-4-105(1) should the city employ him as a police officer.
Code Section 25-4-105(1) prohibits public servants from using their official positions to obtain a pecuniary benefit for themselves, as well as, a relative or a business with which they are associated.
Therefore, should the deputy sheriffbe employed as a police officer, he would be prohibited by Code Section 25-4-105(1) from using the supplies, equipment, vehiclesand other resources available to him as a deputy sheriff to carry out his duties as a city police officer for which he is being personally compensated.In addition, the requestor would be prohibited frombeing paid both as a city police officer and/or as a deputy sheriff during the same work schedule for carrying out law enforcement functions within the city and/or county.
This issue also must be viewed as it relates to Code Section 25-4-101 which is discussed and cited above.
Clearly, an individual serving as both a city police officer and as a deputy sheriff has the potential of creating suspicion among the public and reflecting unfavorably upon both the county and city when the city employing him is located within the county employing him.This is especially true considering that the county sheriff’s department has concurrent jurisdiction with the city police departments to provide law enforcement inside the city limits of the municipalities located within the county.Therefore, such a circumstance should be avoided whenever possible.
Scott Rankin
Executive Director