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(2) state:

"(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.

One of the aldermen for the City is currently employed by the County Board of Supervisors as the County Fire Co-ordinator. I have received a copy of your recent advisory opinion number 95-121-E. My question is, is there a conflict of interest for the City Alderman to also be employed as the County Fire Co-ordinator? If so, can he recuse pay for one position and avoid the conflict?

    In addition to the above facts and circumstances, the requestor advised the Commission's staff that there is a fire protection contract between the county and the city which provides $4,000.00 in county fire insurance rebate funds to the city. Also, there is an interlocal co-operation agreement between the county and the city concerning the use of all facilities.

    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 co-ordinator and alderman, would have a private pecuniary interest.

    In this instance, the Commission finds that the existing contracts, especially the fire protection contract, are sufficient to cause a conflict of interest to occur.

    Therefore, the alderman's employment as the county fire co-ordinator is prohibited by the above cited Constitutional Section 109 and Code Section 25-4-105(2).

    In regard to the alderman foregoing compensation, his serving as an uncompensated county fire co-ordinator would remove the private pecuniary interest addressed above.

    Even if the alderman foregoes compensation, the requestor should advise him to be keenly aware of the above cited Code Section 25-4-101.

    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 of a city receiving county fire insurance rebate funds that is simultaneously serving as that county's fire co-ordinator has the potential of creating suspicion among the public and reflecting unfavorably upon the city and county government.
 
 

Ronald E. Crowe Executive Director