This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on  October 1, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May an employee of a county tax assessor’s office serve as alderman of a municipality with which the county has an interlocal agreement to collect taxes?

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

(i) Counties; and

(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.

(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. Any improper form or grammar is attributable to the original.
 

I am presently employed with the County Tax Assessor’s Office and I am a candidate for alderman with a City in the County.

My job duties are: entering data on properties real & personal, filing homestead exemptions, registering trailers, and basically just maintaining tax rolls for the county.  I am attaching a copy of the personnel policy; pleas note that I am exempted from the “Section VI: Wage and Hour causing me to be on an administrative level.  Reference: page 5.  Referring to this clause on page 5 if this is the only one factor that will cause this opinion to rule unfavorable it can and will be removed prior to accepting the alderman position.

The county and city holds a contract with each other through an interlocal agreement. See Attachment. [not attached to this opinion]

I know that I am indirectly involved, but I feel that I should be able to hold both positions without any conflict of interest reason being I am not directly involved, nor am I indirectly involved to the point that I would be violating any law if elected.

The election is set for August 17, 2004.  I need something in writing as soon as possible.  If there is anyway you can make an exception and rule a decision with a special call meeting it will be greatly appreciated.  Thank you for your consideration in this matter.

The Commission’s staff was also informed by telephone that part of the funds earned by the county under the interlocal agreement has been used to supplement the requestor’s salary. The Commission notes that the requestor was defeated in the special election referred to herein but thereafter asked this opinion be issued in the event the requestor becomes a candidate again in the future.

The Commission formally adopts Advisory Opinions No.00-118-E and No. 99-095-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.

Section 109, Miss. Const. of 1890, and Section 25-4-105(2), Miss. Code of 1972, both quoted above, prohibit a member of a board of aldermen from having an interest, direct or indirect, in any contract authorized by the board during the member’s term or within one year thereafter. The interlocal agreement attached to the opinion request, but not attached to this opinion, is a contract between the city and county whereby the county tax collector collects taxes on behalf of the city. The contract is authorized by the same board of aldermen to which the requestor sought election. The agreement provides the county shall retain “a commission ... of five percent (5%) of the gross City taxes collected” plus interest on a monthly basis. Therefore, an employee of the county tax collector who benefits from this interlocal agreement and who becomes a member of the board of aldermen would violate Constitutional Section 109 and Code Section 25-4-105(2) if the interlocal agreement was entered into, renewed and/or if commission payments under the agreement were retained during the alderperson’s term or within one year thereafter. See also Advisory Opinions No. 00-118-E and 99-095-E.

Neither a recusal nor an abstention will 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.
 
 

Scott Rankin
Executive Director