This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on April 5, 1996, basing its approval solely on the facts and circumstances stated herein.

May a deputy circuit clerk that operates an optical mark reading voting machine for his or her county to test, code and count votes in elections continue to do so if he or she is elected as a county election commissioner?

    Your opinion request to the Office of the Attorney General dated March 2, 1996, was referred by that Office to the Mississippi Ethics Commission on March 4, 1996, as your request involves the above issue that concerns the Mississippi conflict of interest laws.

    State law restricts the Mississippi Ethics Commission 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, this opinion does not address the Mississippi laws outside the Commission's jurisdiction nor the governmental entities' internal rules and regulations.

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 25-4-101 states:

"The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the state and local governments."

Code Section 25-4-103(a), (g)(i)(v), (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:

(i) Counties; 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.

(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 finds 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."

    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 deputy circuit clerk. One of my duties is preparing for elections. We have the Optech Eagle voting machines, and I have been trained to code all elections as well as receive the memory packs on election night and tabulate the results that night and the following day with the committees and commissioners. Is there a conflict of interest with my running for county election commissioner? Would I have to delegate my duties and responsibilities regarding election coding and tabulating results to another deputy?

    The Commission's staff has obtained additional information concerning Optech Eagle voting machines. The Optech Eagle is classified as an optical mark reading system and therefore is subject to Code Sections 23-15-501 et seq., 1972 Mississippi Code Annotated, of the Mississippi Elections Law. These sections provide that the election commissioners or officials in charge of the election are responsible for the testing of the system and the counting of votes with an optical mark reading system. This would include employment of necessary personnel to carry out the testing and counting.

    The Commission formally adopts Advisory Opinions No. 95-136-E and No.91-110-E in response to this request and by attachment incorporates them into this opinion.

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

    As evidenced in attached Advisory Opinion No. 95-136-E, the Commission has consistently held that the county election commission is a separate authority of the county government from the board of supervisors and the other county-wide elected offices. Thereby allowing an employee of another authority of the county government to serve as a county election commissioner.

    Notwithstanding the above, the circuit clerk's office's election duties and the county election commission's election duties are so intertwined that it is beyond reason to conclude that they are in separate authorities of the county government in regard to carrying out elections.

    Therefore, the Commission finds that a county election commissioner's continued employment as a deputy circuit clerk with assigned election responsibilities is prohibited by 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 with the authority of the governmental entity of which he or she is a member, officer, employee or agent. Therefore, the requestor must choose between employment as a deputy circuit clerk with assigned election responsibilities or the position of county election commissioner.

    As stated in attached Advisory Opinion 91-110-E, a county election commissioner's employment by the county election commission he or she serves is a violation of the above cited Constitutional Section 109.

    Therefore should the requestor resign as a deputy circuit clerk with assigned election responsibilities, the election commission of which he or she is a member could not employ the requestor to code, test and count votes on the optical mark reading system in general and special elections as such employment is prohibited by Constitutional Section 109.

    In regard to the county party executive committees' employing the requestor to code, test and count votes on the optical mark reading system in primary elections, the Commission refers the requestor to the above cited Code Section 25-4-101.

    Code Section 25-4-101 sets the tone for the conflict of interest laws as the Legislature's "Declaration of Public Policy." This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.

    Clearly, a county election commissioner's employment by the county party executive committees has the potential of creating suspicion among the public and reflecting unfavorably upon the county election commission and therefore should be avoided at all cost to protect the integrity of the election process.
 
 
 

Ronald E. Crowe Executive Director