This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 7, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May an individual who serves as an appointed member of the county owned community hospital continue to serve in that position after being elected as a member of a city council?

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 25-4-103(f)(i)(ii), (g)(i)(ii)(v), (h) 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) ‘Government’ means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties;

(ii) Municipalities; 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:

(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(2) states:
 

“(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.
 

In our County an appointed member of the county owned community hospital was recently elected to the City Council.  The issue has now been raised as to whether simultaneous service on the city council and hospital board create a conflict of interest in violation of Art. IV, Section 109 of the Mississippi Constitution.  Therefore, please advised of the Mississippi Ethics Commission’s position on such  service.

The Commission formally adopts Advisory Opinion No. 00-137-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.

As set forth in the attached advisory opinion, it was not a violation of Constitutional Section 109 and Code Section 25-4-105(2) for an alderman within one year of leaving office to serve on the board of the community hospital owned by the county and city. This decision was based on the following analysis.

If the position is one of public employment, then a contract of employment would exist.  The State Supreme Court in Frazier v. State, 504 So.2d 675 (Miss. 1987),  held that a public officer that has a contract of public employment while holding public office [or within one (1) year from the expiration of the public officer’s term] violates Constitutional Section 109.

Conversely, the State Supreme Court in Johnston v. Reeves & Co., 72 So. 925 (Miss. 1916), held that if a position is a public office it is not held by contract.  In discussing the Office of State Revenue Agent the Court, in Johnston, stated, “The Legislature has the unquestioned right at any time to prescribe the duties of this officer or to curtail his power.  It may be stated that an office is not a contract, and that the incumbent has no vested interest in the term, fees, or emoluments thereof.”  [Emphasis added to bold text]

Furthermore, the State Supreme Court in State v. McLaurin, 131 So. 89 (Miss. 1930), held, “A position is a public office, under all of the former decisions of this court, when it is created by law, with duties cast upon the incumbent which involve an exercise of some portion of the sovereign power, in the performance of which the public is concerned, and which are also continuing in their nature; while a public employment on the other hand, is a position which lacks one or more of the foregoing elements.”

Also, the State Supreme Court in Golding, State Auditor, et al. v. Armstrong, 97 So. 2d 379, (Miss. 1957), held, “It is the duty, and the nature of that duty, which makes one a public ‘officer’, and not the extent of his authority, and when an employment or duty is a continuing one, which is defined by rules prescribed by law and not by contract, such a charge or employment is an office, and the person who performs it is an officer.”

More specifically, in Golding v. Salter, 234 Miss. 567, 107 So.2d 348 (1958), the State Supreme Count held that county owned hospital trustees were public officers and the hospital purchasing eggs and beef from its trustees violated Constitutional Section 109. [Emphasis added to bold text]

An inspection of today’s Sections 41-13-1, et seq., 1972 Mississippi Code Annotated (amended), lead this Commission to conclude that community hospital trustees of today remain public officers just as the State Supreme Court found them to be in 1958.

In conformity with the attached advisory opinion, an individual may simultaneously serve as a city council member and as a member of the board of trustees of a community hospital without being in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2).

Furthermore, if the community hospital is not partly owned and/or funded by the city, then even the issue of whether both positions are public offices is not material as Constitutional Section 109 and Code Section 25-4-105(2) would not be applicable to city council member being appointed to a solely owned community hospital receiving no city funding.

The requestor is advised that should the Attorney General issue an official opinion or a court of competent jurisdiction hold that the position of community hospital trustee is not a public officer, then this opinion will no longer be applicable.

It is the Commission’s understanding that the requestor is also contacting the State Attorney General’s Office regarding whether the holding simultaneously of the public offices of community hospital board of trustee member and city council member is prohibited under the Separation of Powers Doctrine. See Article 1, Section 2, Mississippi Constitution of 1890.
 

Scott Rankin
Executive Director