ADVISORY OPINION NO. 07-038-E

April 6, 2007

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 25-4-103, 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 have been serving the County as a part-time prosecutor, which allows me to continue to practice law, primarily civil litigation, from the office that I rent adjacent to the courthouse in the city. The Board of Supervisors has approved a resolution which makes the position full-time and authorizes the Board of Supervisors, in addition to salary, to “provide adequate office space and reasonable office expenses to the county prosecuting attorney.”

My spouse has, for many years, been my office secretary. My question concerns having her continue to serve as my secretary after I obtain full-time status.

Question: Is it permissible for the Board of Supervisors to pay me directly, in addition to salary, a “secretarial allowance” as part of “office expenses” so that I may continue to employ my spouse as secretary?

III. ANALYSIS

Pursuant to Section 25-4-105(1), Miss. Code of 1972, no public servant may use his official position to obtain pecuniary benefit for his spouse. See definition of “relative” in Section 25-4-103(q), Miss. Code of 1972, above. Therefore, a county prosecuting attorney may not employ his wife as his secretary and pay her from a secretarial allowance appropriated by the board of supervisors.

MISSISSIPPI ETHICS COMMISSION


BY: Tom Hood, Executive Director and
Chief Counsel