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 a municipal board member join a lawsuit against the municipal board and then vote on matters related to the lawsuit?
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)(ii), (h), (l) and (p)(i)(ii)(iii) 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:
(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.”
“(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.”
As County Attorney some members of the Municipal Board have asked that I get a ruling on the legality of a member of the board joining in a suit against the municipal board.Would this be a conflict of interest or is it legal?Could he be allowed to vote on the matter?
The Commission formally adopts Advisory Opinion No. 93-035-E in 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.
It is not a violation of the conflict of interest laws for a municipal board member to join a lawsuit against the municipal board.However, the municipal board member can be expected to violate Code Section 25-4-105(1), cited above, if he votes on matters related to the lawsuit once he becomes a party to the lawsuit.
Code Section 25-4-105(1) prohibits a public servant, including a municipal board member from using his position to obtain a pecuniary benefit for himself.Surely a municipal board member, who votes on matters related to settling or otherwise concluding a lawsuit against the municipality when he is a plaintiff in said lawsuit, would violate Code Section 25-4-105(1) as such an action by the municipal board to settle or otherwise conclude the lawsuit would undoubtedly provide a pecuniary benefit to the plaintiff/board member.
Therefore, the individual as a municipal board member should totally and completely recuse himself from any matter coming before the municipal board concerning the lawsuit of which he is a party.
The requestor is advised to inform the board member that an abstention is a vote with the majority of a governmental board and therefore does not qualify as a recusal.
A total and complete recusal requires that the individual not only avoid debating, discussing or taking action on such matters during an official board 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 individual must leave the room or area where such discussions, considerations and/or actions take place.The minutes of the governmental board should state the individual left the meeting by showing him absent for that matter.
In addition, the requestor is advised that a circumstance can exist that would cause a violation of Constitutional Section 109 and Code Section 25-4-105(2), both cited above, should the municipal board take action to settle the lawsuit outside the jurisdiction and direction of the courts.If the board settles the lawsuit, a contract would exist between the municipality and the parties to the lawsuit.
Such a circumstance involves the existence of a contract between the municipality and the municipal board member where the public servant would have an inherent interest and/or a private pecuniary benefit.
Constitutional Section 109 and Code Section 25-4-105(2) would prohibit a municipal board member from directly or indirectly having an inherent interest and/or receiving a pecuniary benefit from his municipality as a result of any contracts existing between himself as a member of the board and as a party to the lawsuit.
The requestor is advised to inform the board member 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 to settle the lawsuit results in a contract in which the board member has a prohibited interest violating` Constitutional Section 109 and Code Section 25-4-105(2).
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 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.
A municipal board member, who also is a party to a lawsuit against the municipality, certainly has the potential of creating suspicion among the public and reflecting unfavorably upon the city, should the individual become involved, either directly or indirectly, with the lawsuit in his capacity as a municipal board member.
The individual, as a municipal board member, must totally and completely recuse himself from any matter coming before his municipal board that concerns the lawsuit of which he is a partyin order to fully and completely comply with the State’s public policy set forth in CodeSection 25-4-101.
Scott Rankin