May 3, 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 May 3, 2002, basing its approval solely on the facts and circumstances stated herein.
May an individual be appointed as a special assistant county prosecuting attorney while continuing to serve as county election commissioner?
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(g)(i),
(h),(l) and (p)(i)(ii)(iii) states:
“(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)(h) 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:
(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee.”
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 presently serving as an elected county election commissioner for the County.As you are aware, the creation of the board of election commissioners is found in Miss. Code. Ann. 23-15-211; the election of said commissioners is found in Section 23-15-213.
The legislature has determined that county election commissioners work part-time; the maximum number of days which a commissioner may work, and be compensated for, is based upon the total population of the county in question.Miss. Code Ann. 23-15-153 specifies that election commissioners must accumulate five (5) hours of work in order to receive a per diem of $70.00.This statute also sets forth the criteria to determine the maximum number of days for which the election commissioners of the different counties may be compensated.In addition, this statute provides that each commissioner must submit a claim form in order to receive their compensation.The Auditor’s Office for the State of Mississippi has approved a claim form which requires that an election commissioner list the date and number of hours worked on that date.Election commissioners have no restrictions on the times of day, or the days of the week, during which their duties may be performed.
I have been tentatively offered a position as Special Assistant County Prosecutor for the County.This position is a result of a federal grant which the county Sheriff’s Office receives for its Motor Carrier Unit.I do not have the grant proposal language for this position, but I understand that it will encompass the prosecution of tickets issued by the Motor Carrier Unit for violations that are found following vehicle safety inspections.I have been advised by the director of the Motor Carrier Unit that the grant will not require the prosecutor to work a minimum number of hours.Furthermore, I understand that the work required of this prosecutor position will be performed before the Justice Courts of the County.
It should be noted that I have not been offered the position as special prosecutor because of my status as a county election commissioner.Rather, this position is being offered due to my past work before the County Justice Court as both a public defender, and, my prior appointment as the Special Assistant County Prosecutor for Domestic Violence.
In researching the conflicts question I have read with interest some of the various opinions which have been issued by the Ethics Commission.These appear to provide a strong basis for the position that I can serve simultaneously as an election commissioner and as special assistant county prosecutor without violating any of the ethics and/or conflict of laws provisions.However, I am requesting an opinion to confirm this.
One of the opinions that I read was Advisory Opinion No. 98-116-E, November, 1998, where the Commission referred to Advisory Opinion No. 96-035-E, stating:
As evidenced in attached Advisory Opinion No. 95-136-E, the Commission has consistently held that the county election commission is a separate authority of the county government from the board of supervisors and the other county-wide elected offices.Thereby allowing an employee of another authority of the county government to serve as a county election commissioner.
Advisory Opinion No. 95-136-E also notes that “the finding that a county election commission and the county board of supervisors are separate ‘authorities’ of the same governmental entity . . . brings into effect the exception found in Code Section 25-4-105(4)(h).”
This same finding is again seen in Advisory Opinion No. 00-113-E, wherein the Commission found that it would not be a violation of the conflict of interest laws for either a deputy county tax assessor or an assistant road manager to continue their employment with the county while also serving as a county election commissioner.This finding was based upon the premise that the “county election commission is a separate entity of the county government from the board of supervisors and the other countywide elected offices such as the county tax assessor/collector’s office.”
The position of county election commissioners is, by statute, a part-time position.The work schedule of an election commissioner is not defined or limited to any particular hour or day of the week.In fact, compensation is only received for the actual hours worked pursuant to Code Section 23-15-153.
Furthermore, the position as Special Assistant County Prosecutor would be considered part-time.The work hours required for this position would be flexible with the required court appearance hours being set at one day per week.
The job duties and requirements of county election commissioner and prosecutor are such that neither could be performed during the course of the other, thus avoiding any appearance that the work of either position is being conducting during the same work schedule.
In addition, the requestor provided the Commission’s staff with the fact that the election commissioner would be appointed special assistant county prosecutor by the county board of supervisors.
The Commission formally adopts Advisory Opinion No. 00-113-Ein response to this request and by attachment incorporates it into this opinion.
Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.
The conflict of interest laws do not as such prohibit an individual from being appointed as a special assistant county prosecuting attorney while continuing to serve as county election commissioner.
This opinion is based on the Commission’s finding that while the county election commission, county board of supervisors and county prosecutor’s office are part of the same governmental entity, the election commission isa separate "authority" from the other two.This finding brings into effect the exception found in the above cited Code Section 25-4-105(4)(h).
Notwithstanding the above, the Commission cautions the requestor that she may not use her official positions as a special assistant county prosecuting attorney or as an election commissioner to obtain a pecuniary benefit for herself in violation of the above cited Code Section 25-4-105(1).
Specifically, 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.
In order to avoid using their official positions to obtain a pecuniary benefit, the public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests.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 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 detail discussions, made in person, by telephone or by any other means.
Also in order 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 governing entity’s board should state the public servant left the meeting by showing him or her absent for that matter.
Therefore, a special assistant county prosecuting attorney also serving as an election commissioner must totally and completely recuse herself from all matters coming before the county election commission that concern any member of the county board of supervisors and/or the county prosecuting attorney in order to be certain to avoid a violation of Code Section 25-4-105(1).
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 it is 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 unfavorablyupon 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, an employee of the county board of supervisors and/or county prosecuting attorney serving as a member of the county election commission has the potential of creating suspicion among the public and reflecting unfavorably upon the county election commission.Therefore, the public policy mandate set forth in Code Section 25-4-101 is another reason why the special assistant county prosecuting attorney also serving as a county election commissioner must totally and completely recuse herself from all discussions, actions and decisions of the county election commission concerning any member of the board of supervisors and/or the county prosecuting attorney for whom she would be working.
Scott Rankin
Executive Director