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 one attorney serve in the capacity of municipal board attorney and as municipal judge for the same municipality?

    Your opinion request to the Office of the Attorney General dated May 12, 1995, was referred by that Office to the Mississippi Ethics Commission on June 20, 1995, as your request involves the above issue that concerns the Mississippi conflict of interest laws.

    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 identifyng data, are set forth as follows and considered part of this opinion.

I am writing on behalf of a municipality in my official capacity as attorney for the municipality.

We are respectfully requesting an ethics opinion as to whether or not one attorney can serve in the capacity of City Attorney and Municipal Judge for the same municipality.

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

Code Section 25-4-103(a), (g)(ii), (h) and (p)(i)(ii)(iii) 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:

(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 government;

(ii) Any officer, direct or indirect 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

(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(3)(a) states:

"(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."

    Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is that the requestor's continued employment as the municipal board attorney should he be appointed municipal judge does violate the above cited Code Section 25-4-105(3)(a).

    The interpretation of Code Section 25-4-105(3)(a) is that a public servant may hold only one position within the authority of the governmental entity of which he or she is a member, officer, employee or agent. Therefore, the requestor must choose between the position of municipal board attorney or municipal judge.

    The authority to appoint a municipal board attorney or a municipal judge, respectively found in Sections 21-15-25 and 21-23-5, 1972 Mississippi Code Annotated, is discretionary with the municipal governing authority. In a code charter municipality, the municipal governing authority is the board of aldermen and mayor. Therefore, both positions, municipal board attorney and municipal judge, are within the same authority of the governmental entity.
 
 
 

Ronald E. Crowe Executive Director