This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances flirnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on October 6, 1995.

May a chancery clerk enter into a consultant contract with a bank which serves as one of the county's three depositories?

          Your opinion to the Office of the Attorney General was referred by that Office to the Mississippi Ethics Commission on September 12, 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 identilying data, are set forth as follows and considered a part of this opinion.

I was recently elected Chancery Clerk. I will be assuming my new position in January and will be leaving the Bank in October or November.

It is my understanding that I can be a consultant for whomever while serving as Chancery Clerk. If it is with my present Bank employer, I realize I cannot handle/open my Chancery Clerk accounts with the Bank. The County accounts are either bid out or distributed equally among the three banks.

I would appreciate you or your staff forwarding me an Attorney General's opinion about my serving as a consultant as long as it does not interfere with my job as Chancery Clerk.

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

Code Section 25-4-103 (f)(i)(ii), (g)(i), (h), (k)(i)(ii), (1), (m) and (p)(i) 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 flinds.

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

(i) Counties.

(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).

(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 government.

          Code Section 25-4-105(1), (3)(a) and (5) states:

"(1) No public servant shall use his official position to obtain pecuniary benefit for himself other than that compensation provided 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.

(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.

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

          The requestor upon taking office as chancery clerk may not have a material financial interest in a bank serving as one of the county's depositories as such an interest is prohibited by the above cited Code Section 25-4-105(3)(a).

          Therefore, a consulting contract between the requestor/chancery clerk and the bank/county depository resulting in an aggregate annual net income to the requestor that constitutes a material financial interest as defined by Code Section 25-4-105(k)(i)(ii), cited above, violates Code Section 25-4-1 05(3)(a).

          Notwithstanding the above, the requestor also must remain keenly aware of the above cited Code Section 25-4-105(1) and (5).

          Code Section 25-4-105(1), cited above, 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 from subject matters providing the pecuniary interests. An abstention is a vote with the majority of the governing entity's board and therefore does not qualify as a recusal.

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

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

          Although a recusal prevents a violation of Code Section 25-4-105(1), it does not prevent a violation of Code Section 25-4-105(3 )(a).

          Code Section 25-4-105(5) prohibits a public servant from intentionally using or disclosing nonpublic information gained in the course of or by reason of one's official position that could result in a pecuniary benefit for the public servant, a relative or any other person. A person within the meaning set forth in Code Section 25-4-103(m), cited above, would include a bank.
 
 

Ronald E. Crowe Executive Director