This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 9, 2005, basing its approval solely on the facts and circumstances stated herein.
 

May an alderman continue to serve as an uncompensated volunteer firefighter and EMT with a volunteer fire department contracting with his town to provide fire protection services?

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(c), (d), (e), (f)(i)(ii), (g)(ii), (h), (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.

(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.

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

(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:

(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.

(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) and (2) 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.

(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.
 

On June 7, 2005, I was elected as Alderman of the Town. On August 1, 2005, I submitted a request for leave of absence from the City Volunteer Fire Department, until a ruling from the Mississippi Ethics Commission concerning any possible conflict of interest between my responsibilities as Alderman and my responsibilities as a member of the Volunteer Fire Department.

I have been a member of the Volunteer Fire Department for over nine years, and an officer for five years. I have been one of the top five members for making the highest percentage of calls for all nine years.

Currently the Volunteer Fire Department has twelve active firefighters, with an average of eight men per call. The shortfall in manpower for fires is during the daytime, and I am one of about five who can make daytime fires. Besides training that I have received since becoming a member of the Volunteer Fire Department, I have six years of military experience, all engineering and training, concerning rescue operations, shipboard fire fighting and damage control.

The Volunteer Fire Department’s “pay per call” amounts to about $10,000.00 to $11,000.00 per year. I will give that up.

However, what I am asking for is be able to respond to calls as a firefighter and EMT, attend training sessions, be covered on the accidental death insurance and worker’s compensation, in case something happens while on a call. I would not be part of the “pay per call’, not have any input in budget requests, expenditures, or any say in the business side of the fire department. Just want to be there as a firefighter or EMT for manpower. Currently I am Captain of the department. This is an operational chain of command position. All expenditures and budget request are done by the Fire Chief/Town Fire
Administrator. I would like to remain as Captain, but if necessary would resign to stay on as a member for manpower purposes.

The Commission formally adopts Advisory Opinion No. 95-050-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.

Constitutional Section 109 and Code Section 25-4-105(2), cited above, prohibit the requestor, as an alderman, from receiving any type of compensation as a volunteer firefighter and EMT by way of the contract between the volunteer fire department and the town authorized during his term and one year thereafter. Also, these same laws will prohibit the requestor from serving as an officer of the volunteer fire
department.

However, as set forth in the attached Advisory Opinion No. 95-050-E, a mayor and/or an alderman of a city may serve as an uncompensated member of a volunteer fire department contracting with the city to provide fire protection. Therefore, the requestor, as stated in his letter, must give up the “pay per call amount” in order to continue to serve by responding to calls as a volunteer firefighter and EMT and attending training sessions.

Regarding the accidental death insurance and workers’ compensation, theses benefit certainly result in the requestor having an interest in the contact for fire service between the volunteer fire department and the town. However, the Mississippi Supreme Court has held the application of Section 109 and by extension Section 25-4-105(2) is not unlimited in its proscription. In Frazier v. State, 504 So. 2d 675
(1987), the Court stated that while Constitutional Section 109 imposes a broad proscription, there is an “edge to [its] target” and that “[s]uch, a prohibition, when balanced against the potential harm to our people, goes beyond any possible intent or purpose of ... [S]ection [109].” Id. at 698.

In Jones, et al. v. Howell, et al., 827 So.2d 691, 693 (Miss. 2002), the Court held:
 

Section 109 serves the policy of protecting the public interest by ‘preventing graft of every possible sort, and secure the honest and clean administration of [governmental] affairs.’ Nevertheless, we are also mindful that Section 109 must not be interpreted too expansively, without regard to common sense considering modern, current circumstances and conditions. We will not allow or cause grave risks to state government, nor will we require that which is ‘thoroughly impracticable.’ (citations omitted)

The Howell Court summarized this point by holding Section 109 should only be interpreted “to provide a rational prohibition against self-dealing and abuse of power,” and went on to suggest “the best analysis hinges upon whether an individual member of [a government board] was in a position to advance the rights and benefits for himself, his friends and family beyond common rights and responsibilities provided to other members of his professional class.” Id. at 702.

Considering these admonitions from our Supreme Court, this Commission has found that certain circumstances will not necessarily constitute a violation of Section 109 or Section 25-4-105(2), although their proscription may be “abstractly valid.” Further, the Court has said that Section 109 should not be interpreted to have “an unchannelled proscription that would strike out at public officials at random and risk depriving our people of the choice of selecting what may well be among our most able and deserving public
servants.” Frazier at 698.

Here the requestor will receive accidental death insurance and workers’ compensation only if injured while acting as an unpaid volunteer. In short, its only purpose to pay him or his family should his injuries cause a loss to his earning ability due to his volunteer service. Under the agreement between the volunteer fire department and the town, the requestor will receive no special treatment or benefits unavailable to other firefighters and will receive no additional income except replacement income due to injury. Therefore, it is this Commission’s opinion no violation of Constitutional Section 109 or Code Section 25-4-105(2) will occur if the requestor is covered by the accidental death insurance and workers’ compensation coverage as an otherwise uncompensated volunteer firefighter and EMT.

It is also the Commission’s opinion that Code Section 25-4-105(1), cited above, requires the requestor to recuse from voting, or otherwise participating, on any contracts with or funding for the volunteer fire department coming before the board of alderman while serving as an officer of the volunteer fire department or being compensated as a volunteer firefighter/EMT.

This finding is based on the volunteer fire department being a business with which he is associated if the requestor is compensated by, serves as an officer of or exercises control over the volunteer fire department while it is being funded by the town.

An abstention is a vote with the majority of the governing entity’s board and therefore does not qualify as a recusal.

A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during the official meeting, but also avoid discussing the subject matter with other board members, staff or any other person prior to and after the official meeting. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

Also to properly recuse oneself from a matter, the public servant must leave the room or area where such discussions, considerations and/or actions take place. The minutes of the governing entity’s board should state the public servant left the meeting by showing him or her absent for that matter.

A recusal or an abstention does not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2). Even without a board member’s vote or participation, the authorization by his or her board nonetheless results in a contract in which the board member has a prohibited interest.
 

Scott Rankin
Executive Director