This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on January 3, 2003, basing its approval solely on the facts and circumstances stated herein.
 

May an attorney employed by a municipality as a city prosecutor also be employed by a state agency, as long as the attorney only works for the state when not needed by the municipality?

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(f)(i)(ii), (g)(i)(v), (h) and (p)(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.

(p) “Public servant” means:

(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.
 

Attached please find a letter from the Mayor of the City asking that I seek an opinion regarding the ethical considerations and the legality of working simultaneously for the State of Mississippi and the City.

Facts: When I was hired by the a Department of the State as a Staff Attorney, we had three attorneys doing the job that I now do as Staff Attorney for four counties.  There were seven Staff Attorneys working on 11 county area and we were promised that if we held on there would be more attorneys hired.  There are now only two of us; my immediate supervisor and me.

The City is a city within the County.  The State’s County Office Staff maintains approximately 12,000 open cases.  Even though the tiny legal department of the State’s County Office is doing an outstanding job in pushing through an incredible volume of cases, we have only been able to stem the tide.  We are still almost 4,000 cases behind.  The approximate waiting time for a case to reach the Court is almost 5 years on average.  In my opinion it would take 7 attorneys working full time to both catch up with the old cases and keep up with the new cases.
 

When I applied for the Job as City Prosecutor, it was my intent to seek different employment.  Shortly after it was announced that I had been hired as the City Prosecutor for the City, several people received inquiries as to the attorney crisis situation at the Department of the State and whether it might be possible for me to stay with the Department.  Since the City wanted me to start immediately and I had some 400 or so cases in various legal stages with no one readily available to replace me, I gave a two month notice to the State, used personal leave time without pay from the State where needed and started working for the City.

I can sincerely appreciate the desperate need for attorneys in this particular area and I am willing to contribute to my community where possible.  Since the City Prosecutor’s job is a part-time job, I am willing to continue to assist the State of Mississippi in whatever time I have available to me, when I am not specifically working for the City if you find it both legal and ethical.

Question: May an attorney employed by a Municipality as a City Prosecutor, prosecuting misdemeanors on an as needed basis maintain dual employment with the State of Mississippi as a Staff Attorney civilly pursuing certain persons, so long as, the attorney works for the State of Mississippi when not needed by the Municipality?

The Commission formally adopts Advisory Opinion No. 02-014-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.

The state conflict of interest laws do not as such prohibit a public servant, including a prosecuting attorney, from being employed by two totally separate governments, in this instance, the state and a municipality.

Notwithstanding the above, the requestor as an attorney working for governmental entities 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 a public servant, including a prosecuting attorney, from using her official position to obtain a pecuniary benefit for herself or a business with which she is associated.

However, it is not a violation of Code Section 25-4-105(1) when a public servant uses for pecuniary gain the general knowledge in a particular field that she is required to have in order to hold her public employment position. It is a violation when a public servant uses specific knowledge that is available to her only because of her public employment to obtain a pecuniary benefit.  Also, it is a violation when a public servant uses her public employer’s equipment, facilities or other resources to obtain a pecuniary benefit.
 

The issue presented by the requestor 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 municipal prosecuting attorney also performing legal services for a division of the state government has the potential of creating suspicion among the public and reflecting unfavorably  upon her municipality and the state.

Therefore, the requestor as the municipal prosecuting attorney must  avoid involvement with any prosecution of a matter concerning the division of the state also employing her in order to fully comply with the public policy mandate set forth in Code Section 25-4-101.

The requestor is advised, the conflict of interest laws do not overrule either state or municipal employment policies and procedures.  Therefore, the requestor should address the above issue to the personnel departments of the state agency and the municipality to ensure there is not a policies and procedures conflict.

The requestor is also advised to contact the Mississippi Bar Association to discuss the above facts to ensure there are no circumstances prohibiting her from simultaneously performing legal services for both governmental entities.
 

Scott Rankin
Executive Director