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 a county constable serve as an interim executive director of a county tourism and recreation board?
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 25-4-103(a),
(f)(i)(ii), (g), (h), (l) and (p)(i)(ii)(iii) states:
“(a) ‘Authority’ means any component unit of a governmental entity.(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.
(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),
(3)(a) and (4)(j) 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 thegovernmental entity of which he is a member, officer, employee or agent.
(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:
(j) If a constable, may be employed and receive compensation as a deputy sheriff or other employee of the county for which he serves as constable.”
Pertinent facts and circumstances provided by the requestor, absent
identifying data, are set forth as follows and considered a part of this
opinion.
Please be informed that the County Tourism and Recreation Board of the City has authorized this firm to request a written opinion from the Ethics Commission on a matter that has transpired.The current Executive Director of the County Civic Center has gone on personal leave until a certain date and will be retiring on that date leaving a vacancy for the position.The Board voted unanimously to allow an individual to serve as Interim Executive Director until the position is permanently filled.The dilemma is that this individual is currently employed as a Constable of the same county and the Board is concerned that there may be potential conflict with the individual serving in both capacities.
Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.
Code Section 25-4-105(3)(a), cited above, prohibits a public servant, including a county officer or employee, from being a contractor with the public servant’s governmental entity.Employment is considered a contract with the governmental entity of which the individual is employed for purposes of the conflict of interest laws.
However, Code Section 25-4-105(4)(j), cited above,provides an exception to that provision, in that a constable may be employed and receive compensation as another employee of the county for which he serves as constable.
Therefore, Code Section 25-4-105(3)(a) will not prohibit the requestor from simultaneously serving as a county constable and as the interim executive director of a county tourism and recreation board.
Notwithstanding the above, the individual’s failure to completely separate the two positions, constable and the interim executive director of a county tourism and recreation board, can be expected to result in a violation of the above cited Code Section 25-4-105(1).
Code Section 25-4-105(1) prohibits a public servant from using his official position to obtain a pecuniary benefit for himself.
As examples, Code Section 25-4-105(1) would prohibit the requestor, as constable, from performing his constable duties when being paid as the interim executive director of a county tourism and recreation board or when using the county’s equipment provided to him as the county’s interim executive director of a county tourism and recreation board.
Scott Rankin