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 January 5, 1996.

May a county supervisor-elect upon taking office continue his employment with a bank that serves as the county's depository?

    The Mississippi Ethics Commission is restricted to interpreting and issuing opinions on Sections 254-101 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 entity 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 25-4-103(g)(i), (h) and (p)(i)(ii)(iii) states:

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

(i) Counties.

(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 the government;

(ii) Any officer, direct or indirect, 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

(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.

I am currently an employee of a Bank and have recently been elected as supervisor. As an employee of the bank I am the courier and delivery person. I do not handle any transactions and make no management decisions.

Please let me know by written opinion if my position at the bank is a conflict of interest by serving as a supervisor. The bank is a depository for County funds.

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

    In Frazier v. State, 504 So.2d 675 Miss. 1987), the State Supreme Court held that the selection of a county depository by a county board of supervisors is an authorization of a contract within the meaning of Constitutional Section 109. Emphasis added]

    Therefore, the county board of supervisors' selecting of the supervisor-elect's bank employer as a county depository while the supervisor-elect remains an employee of the bank is prohibited by the above cited Constitutional Section 109 and Code Section 25-4-105(2).

    Should the supervisor-elect chose to terminate his employment with the bank prior to his taking office, the bank's selection as a county depository during the supervisor-elect's term, or for one year thereafter, would not result in the supervisor-elect being in violation of Constitutional Section 109 and Code Section 25-4-105(2).

    The requestor is advised 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 supervisor's vote, the authorization by the board of supervisors nonetheless results in a contract in which the supervisor has a prohibited interest.
 
 
 

Ronald F. Crowe Executive Director