This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on November 1, 2002, basing its approval solely on the facts and circumstances stated herein.
 

May a Mississippi Department of Correction employee also hold the position of county supervisor?

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)(i)(v), (h), (l) and (p)(i)(ii)(iii) states:
 

“(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

(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) and (2) 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.

(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.”

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
 

This letter is sent to inquire for an opinion of a state agency employee who wishes to run for County Supervisor.  I would like to know the legal opinion on this issue.

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 a state employee to simultaneously serve as a county supervisor so long as no contracts exist between the two governmental entities, the county and the state agency, in which the county supervisor would have an inherent interest and/or a private pecuniary benefit.  The finding is based on the state and the county being separate governmental entities as defined in the above cited Code Section 25-4-103(g)(h).

Notwithstanding the above, a county supervisor employed by a state agency must remain keenly aware of the above cited Code Section 25-4-105(1) and Code Section 25-4-101.

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.

 
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 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 governing entity’s board should state the public servant left the meeting by showing him or her absent for that matter.

Therefore, the requestor is advised that the only way the county supervisor could be certain to avoid violating Code Section 25-4-105(1) is to recuse himself from all matters coming before the county board of supervisors that concern the state agency should the requestor be elected to the county board of supervisors.

This 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.

Clearly, a county supervisor’s direct or indirect involvement with matters concerning his employing state agency that are before the county board of supervisors which the state employee is a member has the potential of creating suspicion among the public and reflecting unfavorably upon the county and the state.  This is another reason why the county supervisor  must recuse himself from all matters coming before the county board of supervisors that concern his employing state agency.  Additionally, the requestor should recuse himself from matters before his employing state agency concerning the county he serves as supervisor to avoid the potential of creating public suspicion.

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 a board member of one governmental entity be employed by a separate governmental entity.

 
As stated above, such a circumstance involves the existence of contracts between the two governmental entities in which 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 county supervisor from directly or indirectly having an inherent interest and/or receiving a pecuniary benefit from his county board or his employing state agency as a result of any contracts existing between the two governmental entities.

The requestor is advised 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, nonetheless, results in a contract in which the board member has a prohibited interest.

Specifically regarding a Mississippi Department of Corrections employee running for both public offices, the requestor is advised to seek an official opinion from the Attorney General’s Office.  Specifically, the requestor should seek guidance from the Attorney General regarding Code Section 47-5-49 (Employees not to engage in other business) and Code Section 47-5-89 (No solicitation nor contribution for political purposes).  Both Code Section 47-5-49 and 47-5-89 apply specifically to Mississippi Department of Correction employees.

Also, the requestor must present the matter to the personnel department of the Mississippi Department of Corrections to determine whether the Department has policies and procedures that affect such dual service.  This opinion will not override or adversely affect, in anyway, the policies and procedures of the Mississippi Department of Corrections.
 

Scott Rankin
Executive Director