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 individual simultaneously hold political office as a city board member and a state legislator?
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:
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(b),
(c), (d), (g)(ii)(v), (h), (l) and (p)(i)(ii)(iii) states:
“(b) ‘Benefit’ means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.(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, anonprofit 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.
(g) ‘Governmental’ means the state and all political entities thereof, both collectively and separately, including but not limited to:
(ii) Municipalities; and(v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.
(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)
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.”
Pertinent facts and circumstances provided by the requestor, absent
identifying data, are set forth as follows and considered a part of this
opinion.
I was elected in 1991 to a city board and was reelected for two additional terms and continue to serve in that position.
In 1995, I was elected to the State Legislature.It has been my understanding that it is not a violation of the Mississippi Constitution nor Mississippi laws, including the Conflict of Interest laws, for me to serve in these dual capacities as they are both legislative positions.
However, a recent occurrence has led me to request an official opinion from the Mississippi Ethics Commission as to whether such dual service in the Legislature and on a city board would violate the Conflict of Interest laws.
In addition, are there steps I should take while serving these two positions to avoid any conflict of interest.
Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.
It is not as such a violation of the conflict of interest laws for an individual to serve simultaneously as an elected municipal board member and as a state legislator.The finding is based on a municipality and the state being separate governmental entities as defined in the above cited Code Section 25-4-103(g)(h).
Constitutional Section 109 and Code Section 25-4-105(2), both cited above, do prohibit an individual from having an interest in a contract with a governmental entity if he or she is a member of a governmental body, such as the Legislature, that passes laws or appropriates funds to the governmental entity that may fund the individual’s governmental contract.
Clearly, the Legislature does pass laws that allow municipalities to enter into contracts and appropriate funds to municipalities that they use for their operation, including contracts.
Notwithstanding the above, a municipal board member is clearly a public officer as defined in Glover v. City of Columbus, 197 Miss. 467, 19 So.2d 756, (1944).[1]
Therefore, Constitutional Section 109 and Code Section 25-4-105(2) will not apply in this instance because, as stated above, a municipal board member is a public officer and therefore does not hold his or her position by contract.
Notwithstanding the above, a legislator choosing to serve as a municipal board member must remain keenly aware of the above cited Code Section 25-4-105(1).
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.
As the Legislature has the power to pass laws concerning municipalities, the requestor must totally and completely recuse himself or herself from every aspect of the legislative process concerning the passage of a law that will result in a pecuniary benefit to a municipal board member.For example, this would include, but not be limited to, laws concerning municipal board members compensation and travel expenses.
An abstention is a vote with the majority of a governmental body 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.
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.
This Commission has consistently advised public servants that dual service with governmental entities where one governmental entity may be requested to provide approval, assistance or funding to the other certainly has the potential of creating suspicion among the public and reflecting unfavorably upon both governmental entities.This advice is based on the fact that the public responsibilities and duties in the dual offices may, in some instance, differ or even conflict.
In such instances, the Commission has advised individuals serving in such dual capacities to recuse themselves from such matters.A proper recusal is discussed above.
Notwithstanding this public policy concern, where the dual positions the individual holds are by way of election by the voters, then certainly the public policy and public trust concerns are diminished.Obviously, this arises from the fact that the public has placed the individual in both offices by popular vote.The election process is a power given the public and it is not the purpose of the conflict of interest laws, unless specifically provided for by legislative directive, to diminish that power.[2]
The requestor is also advised to contact the State Attorney General’s Office regarding whether the holding simultaneously of the public offices of state legislator and municipal board is prohibited under the Separation of Powers Doctrine. See Article 1, Section 2, Mississippi Constitution of 1890.
Scott Rankin
Executive Director