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 6, 2005, basing its approval solely on the facts and circumstances stated herein.
 

May a deputy sheriff simultaneously serve as an elected member of a board of levee commissioners?

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)(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; 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.
 

I am a Deputy Sheriff for the County.  The reason for this letter is to inquire information about the violation of conflict of interest law.  If I were to be elected as a Board Member for the Levee Board of the County, would I be in violation of the conflict of interest law?  In other words, can I serve as Deputy Sheriff and a Levee Board Member for the same County.

Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.

It is the Commission’s understanding that the requestor’s reference to the “Levee Board of the County” is in fact a board of levee commissioners authorized in Constitutional Section 229. If this understanding is incorrect, then the requestor should contact the Commission immediately as this advisory opinion will no longer be applicable.

No violation of the Ethics in Government Laws should result if the requestor is elected to the board of levee commissioners as a representative of the county in which he serves as a deputy sheriff. The board of levee commissioners and the county are separate governmental entities, as that term is defined in Section 25-4-103(h), Miss. Code of 1972, quoted above.

Potentially, a conflict of interest could arise if the board of levee commissioners and county enter into an interlocal agreement, or other such contract, which somehow provides an economic benefit to the requestor. Specifically, an authorization of a contract between the board of levee commissioners and the county, during the requestor’s term on the board of levee commissioners or within one year thereafter, that resulted in a personal and/or pecuniary benefit to the requestor as a county deputy sheriff, either directly or indirectly, would violate Constitutional Section 109 and Code Section 25-4-105(2), both cited above. A recusal will not prevent or ameliorate a violation of Constitutional Section 109 and Code Section 25-4-105(2), as they do not require any affirmative act by an individual member but merely action by the board.

The requestor is also advised to contact the State Attorney General’s Office regarding whether the holding simultaneously of the public office of a levee commissioner and the position of deputy sheriff is prohibited under the Separation of Powers Doctrine. See Article 1, Section 2, Mississippi Constitution of 1890.
 

Scott Rankin
Executive Director