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 an alderman elected to the position of chancery clerk continue to serve as alderman?

          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 Separation of Powers Doctrine, Article I, Section 2, Mississippi Constitution of 1890, is an area of state law outside the jurisdiction of this Commission. Therefore, the requestor is advised to contact the Office of the Attorney General regarding the application of the Separation of Powers Doctrine to this issue.

          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 25-4-1 03(f)(i)(ii), (g)(i)(ii), (h) and (p)(i)(ii)(iii) states:

"(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 finds.

(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties; and

(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.

(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 finds or which expends, authorizes or recommends the use of public finds; or

(iii) Any individual who receives a salary, per diem or expenses paid in whole or in part out of finds authorized to be expended by the government."

Code Section 25-4-105(2), (3)(a) and (4)(h) states:

"(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.

(3) No public servant shall:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee."

          Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered part of this opinion.

I am writing on behalf of the Mayor and Board of Aldermen of the City concerning the electing of one of the Aldermen as Chancery Clerk for the County effective January 01, 1996.

The Mayor and Board need to know if this Alderman will be able to hold positions with the City and County. If not will the procedures for a special election have to be taken.

          Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.

          The positions in question, alderman and chancery clerk, are both public offices and therefore are not positions of employment held by contract. Therefore, an individual's simultaneous holding of both positions would not be prohibited by the above cited Constitutional Section 109 and Code Section 25-4-105(2).

          In addition, both positions, alderman and chancery clerk, are with separate governmental entities. Therefore, an individual's simultaneous holding of both positions would not be prohibited by the above cited Code Section 25-4-105(3)(a).

          Notwithstanding the above, the requestor should contact the Office of the Attorney General regarding this question as it appears to be in violation of the Separation of Powers Doctrine, Article I, Section 2, Mississippi Constitution of 1890.
 
 

Ronald E. Crowe Executive Director