This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on December 6, 1996, basing its approval solely on the facts and circumstances stated herein.
May an individual currently serving in the position of county patrolman simultaneously serve as an alderman/councilman of a municipality within the county which the patrolman serves?Your opinion request to the Office of the Attorney General dated November 18, 1996, was referred by that Office to the Mississippi Ethics Commission on November 21, 1996, as your request involves the above issues that concern 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:
"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."
"(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."Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
As attorney for the County Board of Supervisors, I have been requested to seek an opinion from your office on the following:
"Is there any prohibition against an individual, who is currently serving in the position of County Patrolman, from serving as an Alderman/Councilman of a municipality within the County which the Patrolman serves?"
The Commission formally adopts Advisory Opinions No. 94-093-E and No.96-110-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.
The state conflict of interest laws do not as such prohibit a member of one governmental entity from being employed by a totally separate governmental entity.
However, as set forth in the attached opinions, a circumstance can exist that would cause a violation of the state conflict of interest laws should a member of one governmental entity be employed by another governmental entity. That circumstance involves the existence of contracts between the two governmental entities, in this case the municipality and county, in which the public servant would have a private pecuniary interest or an inherent interest.
Therefore, the alderman/councilman would be prohibited
by Constitutional Section 109 and Code Section 25-4-105(2), both cited
above, from having a private pecuniary interest or an inherent interest
in any contracts with the county authorized by his municipal board, during
his term or for one
year thereafter.
The requestor is cautioned to advise the county patrolman that his election as an alderman/councilman would require him to recuse himself from any matter coming before the municipal board that concerns the county in order to avoid a violation of the above cited Code Section 25-4-105(1).
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 detail 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 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.
The requestor is cautioned to advise the alderman/councilman that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2). Even without the alderman/councilman's vote, the authorization by the municipal board nonetheless results in a contract in which the alderman/councilman has a prohibited interest.
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 it is 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, an alderman/councilman being employed by the county in which his municipality is located has the potential of creating suspicion among the public and reflecting unfavorably upon the municipality and the county.
Ronald E. Crowe, Executive Director