This Advisory Opinion concerns the following issue as formulated from facts and/or  circumstances furnished by a requestor. The Commission approved this opinion on July 16, 2004,  basing its approval solely on the facts and circumstances stated herein.

 
May a deputy justice court clerk refer defendants to a defensive driving service  that employs the deputy justice court clerk?

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(d), (g)(i)(iv), (h), (l) and (p)(i)(ii)(iii) states:
 

“(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.

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

(i) Counties; and

(iv) All courts.

(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) 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.”

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

Please provide me with an opinion on the following, whether there is a conflict or  not, to-wit:

I am the Justice Court Clerk of the County.  I have a deputy clerk who handles  Highway Patrol cases.  When someone calls in regarding a speeding citation, and  they meet certain guidelines, the Judges have given us the authority to tell the Defendant that they may attend defensive driving in order to keep the violation off   of their record.  Also, when a Defendant appears in court they may be ordered to  attend defensive driving.

We have two different companies that provide defensive driving services in our area.   My deputy clerk is in charge of telling Defendants about the school and giving them  a referral.  The majority of Defendants are referred to one company.

At this time my deputy clerk is working for one of the companies that provides  defensive driving in this area.  She is not working in the County, but in a neighboring  county, which may have Defendants attending from our court.

My question is:  “Is it a conflict for a clerk that is in charge of sending people to  defensive driving to work for the company that teaches defensive driving?

The Commission formally adopts Advisory Opinion No. 95-054-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.

Code Section 25-4-105(1), cited above, prohibits a public servant, in this instance a deputy  justice court clerk, from using his or her official position to obtain a pecuniary benefit for a business  with which the public servant is associated.

The defensive driving service employing the deputy justice court clerk is a business with  which he or she is associated for purposes of applying the prohibition in Code Section 25-4-105(1).   It does not matter that he or she does not work in your county for the defensive driving service.

Therefore, Code Section 25-4-105(1) will absolutely prohibit the deputy justice court clerk  from referring any defendant to the defensive driving service with which he or she is employed.

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, a deputy justice court clerk being employed by a defensive driving service is a  circumstance that can be expected to create suspicion among the public and reflecting unfavorably  upon the justice court. Therefore, to protect the public’s trust in the impartiality and fairness of the   justice court system, such dual service should not be allowed by the justice court and the board of  supervisors.
 

Scott Rankin
Executive Director