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 alderman be employed as the county fire co-ordinator for the county where the alderman's municipality is located?

    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 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), (1) 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.

(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.

(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(1) and (2) state:

"(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. Also, the attachments to the requestor's letter are attached hereto and incorporated into this opinion.

I represent the City. An Alderman for the City is under consideration to be employed as Fire Coordinator for the County. My question to your office is whether or not there will be any ethical violations for him to serve as the Coordinator and remain as an Alderman for the City. The guidelines state in part that "While the County Coordinator is not over municipal departments, it is highly desirable for municipalities and counties to cooperate for planning purposes. Further, all departments, both municipal and county, should submit their reports through the County Coordinator." I am enclosing copies of a portion of the regulations pertaining to the County Fire Coordinator, and particularly a section on Relationship Between Municipalities and Counties.

    In addition to the above, the Commission's staff was provided the following facts and circumstances. The county fire coordinator position will be part-time and although the salary has not been set it is expected to be approximately $8,000.00 annually. The City has a full-time fire department with volunteer assistance. The City does not have a contract with the County to receive county fire funds. However, there is one existing agreement involving the City and County. It is an interlocal cooperation agreement involving several governmental entities that established a regional drug task force.

    The Commission formally adopts Advisory Opinion No. 94-093-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.

    First, 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 opinion, a circumstance can exist that would cause a violation of the conflict of interest laws should a member of a 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 City and County, in which the public servant, as a salaried county fire coordinator, would have a private pecuniary interest.

    In this instance, the Commission finds that the interlocal cooperation agreement establishing a regional drug task force, in which the City and County are only two of several local governments involved, is not sufficient to establish the prohibited private pecuniary interest. Any funding coming from the local government members making-up the regional drug task force goes to the task force and not to the individual members.

    Notwithstanding the above, the alderman's employment as the county fire coordinator would be prohibited by Constitutional Section 109 and Code Section 25-4-105(2), cited above, should in the future the City contract with the County to receive county fire protection funding. Furthermore, other future contracts not identified at this time could result in the alderman's employment as the county fire coordinator being prohibited by Constitutional Section 109 and Code Section 25-4-105(2).

    The requestor is cautioned to advise the alderman that his employment as the county fire coordinator 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 quality 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 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's vote, the authorization by the municipal board nonetheless results in a contract in which the alderman has a prohibited interest.

    However, the issue presented by the requestor 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 being employed as the county fire coordinator by a 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