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 9, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May a municipality do business with a wrecker service owned by the father of an alderman?

Your opinion request to the Office of the Attorney General dated December 11, 2003, was referred by that Office to the Mississippi Ethics Commission on December 15, 2003, as your request involves the above issue that concerns the Mississippi conflict of interest laws.

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(c), (d), (f)(i)(ii), (g)(ii), (h), (l), (p)(i)(ii)(iii) and (q) states:
 

“(c) ‘Business’ means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company,  self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a  nonprofit corporation or other such entity, association or organization receiving public funds.

(d) ‘Business with which he is associated’ means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.

(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) ‘Government’ 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.

(q) ‘Relative’ means the spouse, child or parent.”

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.
 

The City needs on [sic] an answer on a little confusion we are having concerning an Alderman whose father has a wrecker service, inside our city limits.  The father also owns a garage but the city does not do any business with the garage.

However, from time to time when there is a wreck or such, the owner of the cars will request their wrecker to get the vehicle.

The wife of the gentleman that owns the garage is the first cousin of our mayor, which also adds confusion to the situation.

We need to know if the City, in any way, can use this wrecker service.  At different times our County 911 system will put them [in] rotation for calls inside the city limits.  We need to clear up whether it is allowable for the city to use [this] wrecker service.

The Commission formally adopts Advisory Opinions No. 03-113-E and No. 96-043-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 stated in Opinion No. 96-043-E, and its attachments, a municipality’s police department may contact a wrecker service of an alderman of the municipality to remove vehicles when necessary if the cost  for the service is not paid for by the municipality without the alderman being in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2) and (3)(a).  The reason there is no violation is that there is not a contract with the municipality. As it would not be a violation, per se, for an alderman’s wrecker service to be on a rotation call list with the municipal police department, then certainly it will not be a violation for an alderman’s father’s wrecker service to be on such a rotation call list.

In addition, the conflict of interest laws do not as such prohibit the city from doing business with the alderman’s father’s wrecker service as long as the alderman has no direct or indirect interest in the father’s wrecker service’s contract with the city for its services.

Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a city’s alderman from having an interest, direct or indirect, in any contract authorized by the city board of aldermen during his term or for one year thereafter.

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) would prohibit the city from contracting with the alderman’s father’s wrecker service if the alderman is directly or indirectly interested in the city’s contracts with the wrecker service.  In order for the alderman to avoid a violation of Constitutional Section 109 and Code Section 25-4-105(2), the alderman’s father must be totally and completely financially independent from the alderman and the alderman must have no interest, direct or indirect, in the father’s wrecker service’s contracts with the city.

If the father and alderman should live in the same household or receive other financial assistance from the each other such as the alderman assisting his father in his purchase of the wrecker service, then one would be financially dependent on the other and the wrecker service would be prohibited from doing any business with the city.

The following are some examples that could result in the alderman having an interest, direct or indirect, in his father’s wrecker service’s contracts with the city. The father leases or rents the property from the alderman; the father is a debtor of the alderman; the father lives on property owned by the alderman; or, the father co-owned a business with the alderman.  The above examples should not be considered a complete list of circumstances that could result in the alderman having an interest in the father’s wrecker service’s contracts with the city.

Notwithstanding the above, if the facts and circumstances are sufficient to show that the alderman would not have an interest, direct or indirect, in his father’s wrecker service’s contracts with the city that would violate Constitutional Section 109 and Code Section 25-4-105(2), then the alderman must still remain keenly aware of Code Section 25-4-105(1) and Code Section 25-4-101.

Code Section 25-4-105(1), cited above, prohibits an alderman from using his position to obtain a pecuniary benefit for his parent or a business with which he is associated. Therefore, the alderman may not, in any way, be involved in the city’s decision to pay the claims of his financially independent father’s wrecker service nor may  he directly or indirectly cause city employees to contact his father’s wrecker service in regard to a rotation call list maintained by the police department.

To avoid using his official position to obtain a pecuniary benefit for his parent, the alderman must totally and completely recuse himself from all subject matters providing a pecuniary benefit to his father. An abstention is a vote with the majority of the board and does not qualify as a recusal.

A total and complete recusal requires a 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 detailed discussions, made in person, by telephone or by any other means.

Also to properly recuse oneself from a matter, a 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.

However, 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.

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 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, the city’s contracting with the wrecker service owned by the alderman’s father has the potential of creating suspicion among the public and reflecting unfavorably upon the city.

Therefore, this is another reason why the alderman must totally and completely recuse himself from all discussions, actions and decisions concerning any city business with the father’s wrecker service or his father’s wrecker service being on the rotation call list maintained by the police department.
 
 

Scott Rankin
Executive Director