This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on October 4, 2002, basing its approval solely on the facts and circumstances stated herein.
 

May an individual presently serving as the county public defender also serve as a justice court judge appointed by the county board of supervisors to fill an unexpired justice court judge’s term?

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(e), (f)(i)(ii), (g)(i)(iv), (h), (m) and (p)(i)(ii)(iii) states:
 

“(e) ‘Compensation’ mean money or thing of value received, or to be received, from any person for services rendered.

(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; and

(iv) All courts.

 
(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.

(m) ‘Person’ means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.

(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 the  governmental 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.
 

A duly elected, qualified and acting Judge of the Justice Court died in 2002.

The Board has been requested to appoint the daughter of the Judge to fill his unexpired term.

The Judge’s daughter is the Public Defender for the County, Mississippi, under the Public Defender Program established by the Board of Supervisors in accordance with Section 25-32-1 of the Mississippi Code of 1972, as amended.

The County Board of Supervisors has asked that I obtain from your office an opinion as to whether the occupying of both these positions by the Judge’s daughter would constitute a conflict of interest or a violation of the separation of powers rule.

I have written a letter to the Attorney General’s Office and the Office of the State Auditor requesting their opinion in regard to this matter.

The Commission formally adopts Advisory Opinions No. 02-032-E and No. 95-008-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.

 
As set forth in the attached Advisory Opinions, it is not as such a violation of the state conflict of interest laws for a public servant of a separate governing authority to fill an unexpired term of justice court judge.

As set forth in Section 25-32-1, 1972 Mississippi Code Annotated, the county board of supervisors has the authority to establish a public defender.   Specifically, Code Section 25-32-3 provides that the public defender shall be appointed for a four (4) year term by the senior circuit judge from a list of attorney’s provided by the local bar association.
 
Even though the board of supervisors must establish and fund the public defender’s office, the Commission has held in the past, as stated in Advisory Opinion 95-008-E, the method and period of appointment establishes the public defender’s office as a separate authority of the county from the board of supervisors.
 
The following facts are the basis for the Commission’s opinion.  The public defender is established by the board of supervisors, but appointed by the senior circuit judge.  The position of justice court judge is an elected position, as set forth in Section 19-11-2, 1972 Mississippi Code Annotated, and is separate and apart from the public defender as a governing authority, as generally defined by Code Section 25-32-3.  Code Section 25-4-105(4)(h), cited above, allows a public servant to 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.

Therefore, the employing entities, being separate authorities resulting in the requestor’s subject simultaneously holding the positions of public defender and justice court judge, are not prohibited by the above cited Code Section 25-4-105(3)(a) due to the exception set forth in Code Section 25-4-105(4)(h).

Notwithstanding the above, the requestor should remain keenly aware of the above cited Code Section 25-4-105(1).  Therefore, the requestor should recuse herself from any matter coming before the public defender’s office that concerns the justice court and from any matter coming before the justice court that might concern the county public defender’s office.

 
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.

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 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.

The requestor is also advised to present this matter to the Commission on Judicial Performance as a justice court judge being employed in a position as public defender could be prohibited by the Code of Judicial Conduct. [Emphasis added in bold]

In addition, the requestor is advised to present this matter to the Mississippi Bar Association as a justice court judge being employed in a position as public defender could result in a conflict of interest under the Rules of Professional Conduct. [Emphasis added in bold]

As noted in the requestor’s letter, the State Attorney General’s Office should be contacted regarding whether the holding simultaneously of the offices of a public defender and as a justice court judge, appointed by the county board of supervisors to fill an unexpired term, is prohibited under the Separation of Powers Doctrine, as the Commission does not opine the Separation of Powers Doctrine. See Article 1, Section 2, Mississippi Constitution of 1890.
[Emphasis added in bold]
 
 
 
 

Scott Rankin
Executive Director