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 July 7, 1995.

May the attorney for the county board of supervisors represent criminal defendants before the county's circuit court when the cases were investigated by the county sheriff's department and when one of the county's public defenders is the board attorney's son?

     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 local governmental entity are not addressed by this opinion.

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

I would request an opinion from the Ethics Commission on any possible conflict of interest or unethical conduct concerning the following situation;

The attorney for the County Board of Supervisors has been so for many years. During the last few years, his son has been appointed one of the three public defenders by the Senior Circuit Judge.

As I understand the law, the board attorney is merely general counsel for the County Board of Supervisors and does not have voting power, nor authority to make any appropriation of funds for the County Board of Supervisors. Since the Board of Supervisors approve the pay and compensation of the public defenders (of which his son is one of the three), certain questions have been raised, concerning a conflict of interest or ethical conduct in this situation.

I cannot see any conflict and feel the Ethics Commission will find likewise.

My question is, to wit: Whether or not the simultaneous representation of the County Board of Supervisors and criminal defendants in the County Circuit Court in cases investigated by the County Sheriff's Office would be a conflict of interest?

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

Code Section 25-4-103(a), (g)(i)(iv)(v), (h), (k)(i)(ii)(iii), (1), (p),(i),(ii),(iii) and (q) states:

"(a) 'Authority' means any component unit of a governmental entity.

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

(i) Counties;

(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.

(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.

(k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00);

(iii) The income as an employee of a relative if neither the public servant or relative is an officer, director or partner in the business and any ownership interest would not be deemed material pursuant to subparagraph (i) or (ii) herein.

(1) '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."

Code Section 25-4-105(1), (3)(a) and (4)(b) 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.

(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, public servant or his relative: (b) May be a contractor or vendor with any authority of the governmental entity other than the authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which he is a member, officer, employee or agent where such contract is let to the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received or where the goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws."

     In addition to the facts provided in the requestor's letter, the requestor informed the Commission's staff that the board attorney/father and the public defender/son share office space but do not practice together in a single law firm. The building is owned by the father and the son pays him rent for his office space. The board attorney/father and the public defender/son do not share legal fees or compensation, including that received by each in their respective positions as board attorney and public defender.

     The Commission formally adopts Advisory Opinions No. 95-008-E and No. 92-029-E in response to this request and by attachment incorporates them into this opinion.

     Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is that the representation of criminal defendants before the courts of the county by the attorney for the county board of supervisors is not prohibited by the conflict of interest laws.

     Notwithstanding the above, the attached opinions state that any payments by the county to the board attorney, the board attorney's firm or an associate of the board attorney's firm, if the payments accrue to the firm, for serving as a public defender or as an indigent's counsel violate the above cite Code Section 25-4-105(3)(a).

     The instant circumstance does no violate Code Section 25-4-105(3)(a) because the board attorney/father and the public defender /son are not in a law firm together, but in fact, each has a separate law practice.  In addition, the board attorney/father receives no benefit from the son's salary as a county public defender.

     Code Section 25-4-105(1) 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.

     In order to avoid using their official positions to obtain a pecuniary benefit, the public servants must totally and completely recuse themselves form subject maters providing the pecuniary interests.

     A total and complete recusal requires that the public servant not only avoid debating, discussing or taking official action, but also avoid discussing the subject matter with board members, staff or any other person prior to and after an official meeting.  This includes casual comments, as well as detail discussions, made in person, by telephone or by any other means.

     Also in order to properly recuse oneself form a matter, the public servant must leave the room or area where such discussions, considerations and/or actions take place.  Where applicable, 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.
 
 

                                                                        Ronald E. Crowe
                                                                        Executive Director