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 a legislator within one year of the expiration of the legislator's term of office be elected to the position of secretary of the senate or sergeant-at-arms?

         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 entity are not addressed by this opinion.

         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 25-4-103(f)(i)(ii), (g)(v), (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 funds.

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

(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.

(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 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."

Code Section 25-4-105(2) 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."

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

I am requesting an opinion of the Ethics Commission to determine whether or not an ethics law would be violated should an outgoing State Legislator be elected by the Senate to serve as Secretary of the Senate, or Sergeant-at-Arms.

         The Commission formally adopts Advisory Opinion No. 92-220-E, with attachments, in response to this request and by attachment incorporates it into this opinion.

         As indicated in the attached opinion, the question to be determined here is whether the positions of secretary of the senate and sergeant-at-arms are public offices or public employments.

          If the positions are ones of public employment, then a contract of employment would exist. The State Supreme Court in Frazier v. State, 504 So.2d 675 (Miss. 1987), held that a public officer that has a contract of public employment while holding public office [or within one (1) year from the expiration of the public officer's term] violates Constitutional Section 109.

         Conversely, the State Supreme Court in Johnston v. Reeves & Co., 72 So. 925 (Miss. 1916), held that if a position is a public office it is not held by contract. In discussing the Office of State Revenue Agent the Court, in Johnston, stated, "The Legislature has the unquestioned right at any time to prescribe the duties of this officer or to curtail his power. It may be stated that an office in not a contract, and that the incumbent has no vested interest in the term, fees, or emoluments thereof. "[Emphasis added]

         Furthermore, the State Supreme Court in State v. McLaurin, 131 So. 89 (Miss. 1930), held, "A position is a public office, under all of the former decisions of this court, when it is created by law, with duties cast upon the incumbent which involve an exercise of some portion of the sovereign power, in the performance of which the public is concerned, and which are also continuing in their nature; while a public employment on the other hand, is a position which lacks one or more of the foregoing elements."

         State statutes provide for the following in regard to the positions of secretary of the senate and sergeant-at-arms:

Code Section 5-1-13 provides, "At the hour of twelve o'clock, noon, on the day appointed for the meeting of any regular session of the legislature, the lieutenant- governor shall take the chair in the senate chamber and call the list of senatorial districts in their numerical order."

Code Section 5-1-15 provides, "The senate shall proceed, by viva voce vote of a majority of the senators present, to elect a secretly, a sergeant-at-arms and a door keeper." [Emphasis added]

Code Section 5-1-19 provides, "The lieutenant-governor, the president pro tempore of the senate, the secretary of the senate, the speaker of the house of representatives, and the clerk thereof, may administer oaths to the officers of their respective houses, and each shall take the oath of office prescribed by section two hundred and sixty- eight of the constitution." Emphasis added]

Code Sections 5-1-31 and 5-1-33 provide for specific statutory duties of the secretary of the senate and the clerk of the house of representatives. Emphasis added]

Code Section 5-1-35 provides for the specific statutory duties of the sergeant-at- arms. Primarily these duties are limited to the general supervision of the senate's chambers and maintaining proper decorum under the direction of the presiding officer. Emphasis added]

Code Section 5-1-39 provides, "Each house shall have the power at any time to dismiss any or all of its officers and servants elected or appointed by it, and to elect or appoint in their place."

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

         The above referenced code sections are sufficient to conclude that the position of secretary of the senate is a public office. This conclusion is based on the position being prescribed by law with a specific term, the powers and duties being described by statute and including the exercise of some sovereign power, and the holder being required to take an oath of office.

         Therefore, the legislator may be elected to the position of secretary of the senate within one (1) year of the expiration of the legislator's term of office without violating the above cited Constitutional Section 109 and Code Section 25-4-105(2).

         As reflected above, the position of sergeant-at-arms does not require the taking of an oath of office and its prescribed duties are limited primarily to the general supervision of the senate's chambers and maintaining proper decorum under the general direction of the presiding officer. Certainly, both points do not advance the argument that this position involves an exercise of some portion of the sovereign power.

         Therefore, the position of sergeant-at-arms would be considered public employment. The legislator's holding of a position of public employment with the senate within one (1) year of the expiration of the legislator's term of office would violate the above cited Constitutional Section 109 and Code Section 25-4-105(2).
 

Ronald E. Crowe Executive Director