This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 6, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May a constable or a business which employs a constable enter into a contract with the county he serves for collecting delinquent fines?

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(c), (e), (g)(i), (h), (i), (k)(i)(ii)(iii)(iv), (l) and (p)(i) 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.

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

(g) ‘Government’ means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties.

(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.

(i) ‘Income’ means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.

(k) ‘Material financial interest’ means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other.  Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i)  Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00);

(iii) The income as an employee of a relative if neither the public servant or relative is an officer, director or partner in the business and any ownership interest would not be deemed material pursuant to subparagraph (i) or (ii) herein; or

(iv) The income of the spouse of a public servant when such spouse is a contractor, subcontractor or vendor with the governmental entity that employs the public servant and the public servant exercises no control, direct or indirect, over the contract between the spouse and such governmental entity.

(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.”

Code Section 25-4-105(1), (3)(a) and (4)(b)(c)(d)(f)(h)(j) 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:

(b) May be a contractor or vendor with any authority of the governmental entity other than the authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which he is a member, officer, employee or agent where such contract is let to the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received or where the goods, services or property involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws.

(c) May be a subcontractor with any authority of the governmental entity other than the authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which is a subcontractor with any authority of the governmental entity of which he is a member, officer, employee or agent where the primary contract is let to the lowest and best bidder after competitive bidding or where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws.

(d) May be a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which is a contractor, subcontractor or vendor with any  authority of the governmental entity of which he is a member, officer, employee or agent: (i) where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws; or (ii) where the contractual relationship involves the further research, development, testing, promotion or merchandising of an intellectual property created by the public servant.

(f) May have an interest less than a material financial interest in a business which is a contractor, subcontractor or vendor with  any governmental entity.

(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.

(j) If a constable, may be employed and receive compensation as a deputy sheriff or other employee of the county for which he serves as constable.”

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

As a newly elected Justice Court Judge, I have been approached with an ethical matter for which I need an advisory opinion from your agency.  The facts and circumstances are as follows:

May a Constable, holding elected office, be employed by or have his parents owning a collection agency which contracts with the Board of Supervisors for the collection of outstanding fines?

Please advise if this creates a conflict of interest pursuant to Section 25-4-105 of the Mississippi Code.

The Commission formally adopts Advisory Opinion No. 96-046-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.

Section 19-3-41, Miss. Code Ann. 1972, directly addresses the proposed course of conduct. That statute allows the board of supervisors to “contract with one or more of the constables of the county to collect delinquent criminal fines imposed in the justice court of the county.” Id. The constable may be paid up to 25% of the amount he collects, but those payments must be presented to and approved by the board. Id.

Code Section 25-4-105(3)(a), cited above, prohibits a public servant, like a constable, or a business  in which he has a material financial interest from being a contractor with the governmental entity of which he is an officer, i.e., the county. There are a number of possible exceptions to this rule contained in Code Section 25-4-105(4), cited above, the most pertinent of which is found in Subsection (j). That provision allows a constable to serve “as a deputy sheriff or other employee of the county for which he serves as constable.” While this exception may allow a constable to be an employee of the county, it does not allow him to be a contractor with the county, such as proposed in this request.

The Commission has consistently recognized the long established rule of in pari materia, that conflicting statutes must be read, construed and applied together so that the legislature’s intent may be accurately discerned from the whole of its enactments. The Commission has also consistently applied the fundamental principle of statutory construction that specific statutes control over general statutes. See McCory v. State, 210 So. 2d 877 (Miss. 1968) and Lincoln County v. Entrican, 230 So. 2d 801 (Miss. 1970).

In this instance, the Commission finds that Code Section 19-3-41 provides more specific guidance than does Code Section 25-4-105(3)(a) and that the constable or the collection agency with which he is associated or both of them may contract with the county to collect delinquent criminal fines under the provisions of Code Section 19-3-41. However, the Commission only has authority to interpret the Ethics in Government laws, of which Code Section 19-3-41 is not a part. This opinion only involves an application of that statute to the Ethics in Government laws, not a direct interpretation thereof. If any opinion is needed directly interpreting Code Section 19-3-41, the requestor should consult the Office of the Attorney General who has the authority to opine on that section of the law.

Notwithstanding the above finding, a constable may not use his or her official position in order to obtain contracts with the county to collect delinquent fines. Such actions by a constable would violate the above cited Code Section 25-4-105(1). 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, public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests.  Constables should totally and completely recuse themselves  by  avoiding discussions with the county board of supervisors on the question of contracting with them to collect the delinquent fines.  This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

The requestor should also approach this scenario 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 constable collecting delinquent fines for the county that the constable is elected to serve has the potential of creating suspicion among the public and reflecting unfavorably  upon the  county.  This is especially true since the constable’s statutory duties include serving arrest warrants on persons who are delinquent in paying criminal fines. Conflicts arising from a defendant’s Constitutional rights or from governmental accounting and auditing standards and not from the State’s Ethics in Government laws must also be addressed by the Attorney General’s Office.
 
 

Scott Rankin
Executive Director