This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on February 8, 1996.

May an attorney who represented a municipal employee before the municipality's civil service commission that resulted in disciplinary action that may be appealed in the future and who presently represents the same municipal employee in ongoing federal litigation now serve as a member of the municipality's civil service commission?

    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 governmental entities are not addressed by this opinion.

    The Commission suggests that the requestor advise the attorney/civil service commissioner that the issue presented here also be presented to the Mississippi Bar for an opinion.

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

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(g)(ii)(v), (h), (I), (m) and (p)(i)(ii)(iii) states:

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

(ii) Municipalities; 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.

(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), (3)(d) 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.

(3) No public servant shall:

(d) Perform any service for any compensation during his term of office or employment by which he attempts to influence a decision of the authority of the governmental entity of which he is a member.

(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."

    Pertinent facts and circumstances provided by the requestor by the requestor, absent identifying data, are set forth as follows and considered part of this opinion.

We represent the City and have been requested to seek an ethics opinion for the Commission. A local attorney has been appointed to the Civil Service Commission in the City.

This attorney represented a municipal employee who is presently under federal indictment in connection with an incident resulting in disciplinary proceedings. His employment as legal counsel for this municipal employee was commenced prior to his appointment on the Civil Service Commission.

The involved attorney who is serving on the Civil Service Commission, has advised that he will recuse himself in connection with any appeal of disciplinary action by the municipal employee and will not represent municipal employees in the same employment position in future City disciplinary proceedings. The concern of several council members is that although he recuses himself, his close association with the Commission members would be manifestly unjust, and that he should be ethically precluded from continuing to serve on the Civil Service Commission as a result of the anticipated protracted litigation in the pending court actions against his client.

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

    The civil service commissioner is not as such prohibited by the conflict of interest laws from serving on the civil service commission because he represented a current client before the civil service commission prior to his appointment.

    However, the civil service commissioner is prohibited by Code Section 25-4-105(3)(d), cited above, from representing his current client before the civil service commission or in any appeal of a decision of the civil service commission. Both actions, appearing before the commission or filing an appeal of a decision of the commission, would be attempting to influence a decision of the authority of the governmental entity of which he is a member. The civil service commissioner's receiving of legal fees for either action would result in his violation of Code Section 25-4-105(3)(d).

    The requestor is advised to caution the civil service commissioner regarding 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 this prohibited use of office, the public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests. Should the public servant only abstain his vote will be counted as 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.

    Code Section 25-4-105(5) prohibits the civil service commissioner from using non-public information he obtains as a member of the civil service commission that could result in a pecuniary benefit to his current client or any other person.

    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.
 

Ronald E. Crowe Executive Director