ADVISORY OPINION NO. 06-018-E

April 14, 2006

The Mississippi Ethics Commission issued this opinion on the date shown above in accordance with Section 25-4-17(i), Mississippi Code of 1972, as reflected upon its minutes of even date. The Commission
is empowered to interpret and opine only upon Article IV, Section 109, Mississippi Constitution of 1890,
and Article 3, Chapter 4, Title 25, Mississippi Code of 1972. This opinion does not interpret or offer
indemnity from liability for any other laws, rules or regulations. The Commission based this opinion solely on the facts and circumstances provided by the requestor as restated herein. The indemnity provided under Section 25-4-17(i) is limited to the individual who requested this opinion and to the accuracy and completeness of these facts.

I. LAW

The pertinent Ethics in Government Laws to be considered here are as follows, to wit:

Section 25-4-101, Miss. Code of 1972.

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.

Section 25-4-103, Miss. Code of 1972.

(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.

(q) “Relative” means the spouse, child or parent.

Section 25-4-105, Miss. Code of 1972.

(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.

II. FACTS

Facts provided by the requestor are set forth below, with identifying information redacted, and are
considered a part of this opinion.

I am requesting an Official Advisory Opinion on the following questions and requesting any recommendations and/or solutions on these questions that will cover me in the future as Justice Court Clerk.

1. Can a Deputy Clerk be appointed Justice Court Clerk by the Board of Supervisors if his/her spouse is a Constable?

2. Can the Justice Court Clerk assign a Deputy Clerk to certify Constables Monthly Reports?

3. Can the Justice Court Clerk assign duties to the Deputy Clerk in rotation of the Constable civil and criminal papers?

4. Our Constables are under contract with the Board of Supervisors for collection of delinquent fines. It is required that the Justice Court Clerk certify these payments for payment to the Constable. Can the Justice Court Clerk assign these duties to the Deputy Clerk?

I am requesting documentation from you regarding measures/procedures that can be done to protect myself of any liabilities as Justice Court Clerk on the above questions.

III. ANALYSIS

The board of supervisors has the authority to hire justice court clerks and deputy clerks. Section 9-11-27, Miss. Code of 1972. Yet the justice court clerk is empowered “to issue all process” of the court. Id. Inherent in this power is the discretion to assign service of process to constables at will. Ops. Atty. Gen.
No. 2000-0604 and 2001-0425. A constable who serves process of the justice court is entitled to a fee of
$25.00 per service. Section 25-7-27, Miss. Code of 1972.

A justice court clerk who assigns process or certifies payments to her husband, a constable, would be using her official position to create a pecuniary benefit for her spouse in violation of Section 25-4-105(1), Miss. Code of 1972, quoted above. To avoid this violation, a justice court clerk must recuse herself from any action which would result in her husband collecting a fee. A total and complete recusal requires that the public servant not only avoid taking official action on the subject matter but also avoid discussing the
subject matter with staff or any other person. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

As a practical matter, such a situation would be untenable for the justice court clerk in most situations. She would be compelled to constantly ensure her daily actions do not result in a benefit to her husband. Moreover, the justice court clerk cannot effectively recuse herself from such continuing and mandatory duties by simply delegating those tasks to a subordinate employee.

These proposed facts also raise public policy concerns relating to Section 25-4-101, Miss. Code of 1972, quoted above. Public servants should conduct themselves in a manner which enhances public trust in
government and avoid actions which may tend to create public suspicion about the honesty and integrity of those in government. If a constable’s wife is employed as justice court clerk, a position which provides her the opportunity to routinely enrich her husband and herself, some among the public are likely to suspect that both the constable and his wife are engaged in illegal acts.

Thus, the employment of a constable’s wife as justice court clerk will impose an undue and unfair burden upon the wife to constantly guard against potential violations of law while tending to impeach public
confidence in the constable, the justice court clerk, the justice court and the board of supervisors. For these reasons the Commission finds the employment of a constable’s wife as justice court clerk is prohibited under the Ethics in Government Laws.

The Ethics Commission only has the authority to interpret the Ethics in Government Laws listed at the beginning of this opinion. The Commission is not interpreting other laws cited in this opinion but is merely applying them to an interpretation of the ethics laws. Legal opinions on all other laws are issued by the Attorney General.

MISSISSIPPI ETHICS COMMISSION



BY: Tom Hood, Executive Director and
Chief Counsel