Mec 1996 December Adv Opi no 96-148-E

OFFICIAL ADVISORY OPINION NO. 96-148-E December 6, 1996

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 alderman simultaneously be employed as a deputy medical examiner investigator/coroner for the county in which the municipality the alderman serves is located?

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(f)(i)(ii), (g)(i)(ii), (h) and (p)(i)(ii)(iii) 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 funds.

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

(i) Counties; and

(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.

(p) 'Public servant' means:

(i) Any elected or appointed official of 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(2) states:

"(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.

May an elected alderman for the City serve simultaneously as a deputy coroner for the County.

The Commission formally adopts Advisory Opinions No. 96-088-E and No. 96-016-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 as follows.

First, the attached Advisory Opinion No. 96-088-E provides that a coroner, the same as the county medical examiner investigator, is in the same authority of government as the county board of supervisors. Therefore, a deputy medical examiner investigator/coroner is within that same authority of government. Code Section 41-61-57 provides further support of this finding in that it provides that a deputy medical examiner investigator shall be appointed jointly by the board of supervisors and the county medical examiner investigator. Since the deputy medical examiner is appointed by the board of supervisors and the county medical examiner investigator, it is logical and reasonable that the deputy medical examiner investigator may in a like manner be removed by the board of supervisors and the county medical examiner investigator. The ability to remove the deputy medical examiner investigator makes the position one of employment and not a public office.

Therefore, a deputy medical examiner investigator stands in a similar situation as the county fire co-ordinator addressed in the attached Advisory Opinion No. 96-016-E.

The 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 Advisory Opinion No. 96-016-E, a circumstance can exist that would cause a violation of the 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, as a deputy medical examiner investigator/coroner and alderman, would have a private pecuniary interest.

Constitutional Section 109 and Code Section 25-4-105(2), both cited above, would prohibit the alderman from being directly or indirectly paid any fees or other compensation by his municipality
as a deputy medical examiner investigator/coroner.

The requestor is cautioned to advise the board member that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2). Even without the board member's vote, the authorization by the member's board nonetheless results in a contract in which the board member has a prohibited interest.

The issue presented by the requestor also must be viewed as it relates to Code Section 25-4-

101. 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 serving as a deputy medical examiner investigator/coroner for the county in which the municipality he serves is located has the potential of creating suspicion among the public and reflecting unfavorably upon the municipal and county government.

Ronald E. Crowe Executive Director