This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on December 1, 1995.

May employees of a community college serve as mayor or aldermen of a municipality when the community college and the municipality have a contract whereby the community college agrees to annually pay a percentage of the cost of the operation and maintenance of the municipality's water system?

         The Mississippi Ethics Commission is restricted 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, Mississippi laws outside the jurisdiction of the Commission and internal rules and regulations of the governmental entities are not addressed by this opinion.

         The pertinent conflict of interest laws to be considered here are:

         Code Section 25-4-101 states:

"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."

         Code Section 25-4-105(1) 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."

         Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered part of this opinion. The attached contract because of its size is not attached but is available for review, absent identifying data, in the Commission's office.

         We the below signed Aldermen would like to request an Advisory Opinion as to the legality of an employee of a Community College running for Alderman or Mayor for the Town.

Our situation is this: the Town and the Community College have had a contract since June, 1973 pertaining to the Water System which serves both the Town and College. In part the contract states that at the end of the fiscal year the College pays the Town a percentage of the cost of the operation and maintenance of the system. The Mayor and Board of Aldermen also set water and sewage rates from the Town and the College.

At the present time we are without a Mayor and a Special Election will be held next month. There is one potential candidate for Mayor from the College, so there is an urgency in receiving your opinion. We also have an Alderman from the College who has been on the Board a number of years.

         The Commission formally adopts Advisory Opinions No. 94-007-E and No. 91-055-E in response to this request and by attachment incorporates them into this opinion.

         Based solely on the facts and circumstances presented herein, the Commission's opinion is that the community college's employees' serving as mayor or alderman of the municipality when the above referenced contract exist between the community college and the municipality does not as such violate the conflict of interest laws.

         This finding is based on the premise that the Ethics in Government laws pertain to competing private interests, not the competing interests of public entities. Clearly, the providing of water service by the municipality and the payment for water service by the community college are public interests.

         Notwithstanding the above, the mayor and/or alderman should recuse themselves from any matter coming before the municipal governing authority that involves their community college employer.

         Code Section 25-4-101, cited above, sets the tone for the conflict of interest laws as it is the Legislature's "Declaration of Public Policy." This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.

         Code Section 25-4-105(1), cited above, prohibits public servants from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business with which they are associated.

         The mayor and/or alderman should totally and completely recuse themselves in order to avoid an appearance of impropriety as set forth in Code Section 25-4-101 or to avoid using their official positions to obtain a pecuniary benefit as prohibited by Code Section 25-4-105(1).

         In order 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 total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during an official meeting, but also avoid discussing the subject matter with board members, staff, employees 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.

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

Ronald E. Crowe Executive Director