ADVISORY OPINION NO. 07-041-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 109, Miss. Const. of 1890.

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.

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

(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;

(ii) Municipalities;

(iii) All school districts;

(iv) All courts; 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.

(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.

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

(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.

II. FACTS

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

On March 4, 2007 I spoke with you concerning an ethical ruling. My wife is the Justice Court Clerk in our county and I have qualified to run for office of Board of Supervisors. If elected would there be a conflict of interest?

I am requesting a written ruling concerning this matter. I understand that there will be a meeting of the Ethics Commission in the near future and I would like to have this sent to me as soon as possible.

III. ANALYSIS

Section 109, Miss. Const. of 1890, and its statutory parallel, Section 25-4-105(2), Miss. Code of
1972, both quoted above, prohibit a member of a public board from having any direct or indirect interest in
a contract with the government funded or otherwise authorized by that board during his or her term or for
one year thereafter. Frazier v. State, ex rel. Pittman, 504 So.2d 675, 693 (Miss. 1987). Moreover, a
member of a public board has an indirect interest in his or her spouse’s employment contract. Smith v.
Dorsey, 530 So.2d 5, 7 (Miss. 1988). This is true because the board of supervisors appoints and sets the
salary of the justice court clerk as well as all employees of the clerk’s office, pursuant to Section 9-11-27,
Miss. Code of 1972.

If the requestor is elected supervisor, the justice court clerk must resign her position before her spouse takes office as supervisor to ensure no violation of Section 109 and Section 25-4-105(2) occurs. The justice court clerk may not hold any employment position with the county while her husband is a supervisor or for one year thereafter. A violation of Section 109 or Section 25-4-105(2) could render the clerk’s employment contract null and void, and the supervisor could be liable for the entire amount of the clerk’s salary, in addition to other penalties. Towner v. Moore, ex rel. Quitman County School District, 604 So.2d 1093, 1096 (Miss. 1992), quoting Smith v. Dorsey, 530 So.2d 5, 9 (Miss. 1988).

MISSISSIPPI ETHICS COMMISSION


BY: Tom Hood, Executive Director and
Chief Counsel