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 June 9, 1995.

May the attorney of a municipal governing board simultaneously serve as the attorney for a municipal utilities commission whose members are appointed by the municipal governing board?

     Your opinion request to the Office of the Attorney General dated May 16, 1995, was referred by that Office to the Mississippi Ethics Commission on May 22, 1995, as the issue presented 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 identifying data, are set forth as follows and considered part of this opinion.

     I request an opinion concerning the attorney for the City Council.

The attorney represents the City Council, and also represents the Light & Water Board, which is a free-standing Board set apart from the City Council by resolution adopted in the early 1950's.
The attorney represents the City Council and the Council appoints the Board members of the Light & Water Board, and also exercises budgetary control over the Budget of the Light & Water Board. The rates of the Light & Water Board are set by the Light & Water Board completely independent of the City Council.

The Light & Water Board operates much like the School District (School Board members are appointed and their budget ultimately approved by the City Council), and often certain Council members feel the representation of both Boards has conflicts or potential conflicts.

I would ask an opinion on whether or not the City Attorney can likewise represent the Light & Water Board within the purview of the laws of the State of Mississippi, and especially, the ethics statutes concerning conflicts of interest.

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

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

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

(e) 'Compensation' means money or thing of value received, or to be received, from any person for services rendered.

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

(ii) Municipalities;

(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.

(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.

(m) 'Person' means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.

(p) 'Public servant' means:

(i) Any elected or appointed official of the 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(1), (4)(h) and (5) 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.

(4) Notwithstanding the provisions of subsection (3) of this section, 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.

(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information."

     The Commission formally adopts Advisory Opinions No. 93-229-E and No.92-051-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 attorney of the municipal governing board simultaneously serving as the attorney for the municipal utilities commission is not as such prohibited by the conflict of interest laws.

     This opinion relies in part on Advisory Opinion No. 93-229-E which is attached. This attached advisory opinion concerned the same municipal governing authority and the same municipal utilities commission which are the subjects of the present request.

     The Commission found in Advisory Opinion No. 93-229-E that the municipal governing authority's former mayor could be employed by the municipal utilities commission. That finding dictated that these two governmental entities were concluded to be separate authorities.

     Therefore, the attorney may be employed and receive compensation from the municipal governing authority and the municipal utilities commission as they are separate authorities. Such duel employment being within the exception set forth in the above cited Code Section 25-4-105(4)(h).

     Notwithstanding the above, the attorney can reasonably expect to face situations in such duel employment roles that could result in violations of the above cited Code Section 25-4-105(1) and (5).

     In order to avoid any questions concerning violations of Code Section 25-4-105(1) and (5), the attorney is advised to recuse himself or herself from matters concerning the municipal utilities commission coming before the municipal governing board and from matters concerning the municipal governing authority coming before the municipal utilities commission.

     A proper recusal occurs when the public servant totally removes himself or herself from the pertinent matter by not officially or unofficially taking part or action regarding the subject matter and leaves the room or area where such discussions, considerations or actions take place. The minutes of the governing authority board should state that the public servant left the meeting by showing him or her absent for that matter.

     As suggested in the attached Advisory Opinion No. 92-051-E, the Commission's opinions are based only upon the conflict of interest laws. Therefore, any possible questions concerning professional ethics should be addressed to the Mississippi State Bar Association.
 
 

Ronald B. Crowe Executive Director