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 municipality's mayor's wrecker service respond to requests from the municipality to provide wrecker services when all wrecker charges are paid by the vehicle owner and not the municipality?

    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 entity's 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 endeavour 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(d), (f)(i)(ii), (g)(ii), (h), (1), (m) and (p)(i)(ii)(iii) states:

"(d) 'Business with which he is associated' means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.

(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 funds.

(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.

(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, 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."

Code Section 25-4-105(1), (2), (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 for by law, or to obtain pecuniary benefit for any relative or any business with which he is associated.

(2) No public servant shall be interested, directly or indirectly, during the term for which he shall have been chosen, or within one (1) year after the expiration of such term, 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.

(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 him self; any relative, or any other person, if the information has not been communicated to the public or is not public information."

    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 the City Attorney for the City, I have been requested by the Mayor to request an opinion on the following matter.

The City adopted an Ordinance in 1988 regulating wrecker service in the City. Under the terms of this Ordinance, the City established a wrecker rotation procedure. Each company who participates in the rotation must be licensed. The Ordinance provides that when an emergency wrecker is needed and the owner of the vehicle is not present or does not request a specific wrecker service, the investigating police officer will call Police Department Headquarters and the dispatcher will call the first emergency wrecker service on the rotation list to remove the vehicle. It further provides that on each succeeding call, the next emergency wrecker company on the list must be called. The Ordinance establishes certain maximum fees for the wrecker service. These fees, however, are paid by the person whose vehicle is being towed and not by the City.

The Mayor, who recently took office, owns a substantial interest in a wrecker business which is licensed by the City and has been on the wrecker rotation list for a number of years. My question is:

Can the wrecker business, in which the Mayor owns an interest, continue to be on the wrecker rotation list without the Mayor violating Section 109 of the Mississippi Constitution, the conflict of interests laws, or any other provisions of State law?

    The Commission formally adopts Advisory Opinion No. 89-77-E in response to this request and by attachment incorporates it into this opinion.

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

    As stated in Opinion No. 89-77-E, Issue 1, the municipality's police department may contact a wrecker service of an alderman of the municipality to remove vehicles when necessary if the cost for the service is not paid for by the municipality without the alderman being in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2) and (3)(a). The reason there is no violation is that there in not a contract with the municipality. The Commission concludes that this same finding would apply to a wrecker service owned by the municipality's mayor.

    Notwithstanding the above, the request is cautioned to advise the mayor to remain keenly aware of the above cited Code Section 25-4-105(1) and (5).

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 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 the official meeting, but also avoid discussing the subject matter with other board members, staff 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.

    In order to properly recuse oneself from a matter, the public servant must leave the room 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.

    Also, the Mayor would violate Section 25-4-105(1) if he directly or indirectly caused the city employees to contact his wrecker service.

    Therefore, the mayor must recuse himself or herself from any and all matters relating to the wrecker service Ordinance and its related procedures.

    Furthermore, the mayor may not intentionally use or disclose non-public information obtained through his or her official position as mayor that could result in a pecuniary benefit to himself or herself or any other person as prohibited by Code Section 25-4-105(5). A "person" as defined in the conflict of interest laws would include his or her wrecker service.

    The issue presented by the requestor also must be viewed as it relates to Code Section 25-4-101, set forth above. This code section 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, the municipality's contacting of its mayor's wrecker service to remove vehicles, even though the cost of the service is to be paid by the vehicle owners, has the potential of creating suspicion among the public and reflecting unfavorably upon the municipality.
 

Ronald E. Crowe Executive Director