This Advisory Opinion concerns the following issues 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.

Issue 1. May an attorney serving as county prosecuting attorney and/or attorney for the county board of supervisors simultaneously serve as a municipal board attorney?

Issue 2. May an attorney serving as county prosecuting attorney simultaneously serve as the same county's attorney for the board of supervisors?

    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:

Code Section 25-4-103(g)(i)(ii), (h), (1) 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:

(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.

(I) '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 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) and (3)(a) 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:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent."

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

I am currently serving as Prosecuting Attorney for the County. I am also currently serving as City Attorney for the City. I have today been requested to serve as attorney for the County Board of Supervisors. Obviously, Section 19-23-15 Mississippi Code Annotated provides that the County Prosecuting Attorney may be employed by the Supervisors as the attorney for the Board of Supervisors and may be paid the additional salary otherwise provided by law for the Board's attorney in addition to the salary of the County Attorney.

I would, however, appreciate your office's opinion as to whether or not the Mississippi Ethics and Government laws prohibit me from serving simultaneously as City Attorney for the City, County Prosecuting Attorney and Attorney for the County Board of Supervisors.

Code Section 19-23-15 referred to in the requestor's letter is set forth below.

Code Section 19-23-15. County prosecuting attorney may be attorney for supervisors.

"The county prosecuting attorney may be employed by the supervisors as the attorney for the board of supervisors, and may be paid the additional salary otherwise provided by law for the board's attorney, in addition to the salary of the county attorney, fixed for services as county prosecuting attorney."

    The Commission formally adopts Advisory Opinion No. 91-138-E in response to Issue 1 of 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.

    Issue 1. As stated in the attached opinion, an attorney's holding of such positions simultaneously with a county and a municipality is not as such a violation of the conflict of interest laws. This finding is based on the county and the municipality being two separate governmental entities within the definition set forth in the above cited Code Section 25-4-103(h).

    Issue 2. The Commission is of the opinion that under normal circumstances the holding of two positions by one individual, such as county prosecuting attorney and county board attorney, would result in a violation of the above cited Code Section 25-4-105(3)(a). This is based on the fact that the county prosecuting attorney as an officer of the county would also have an employment contract as county board attorney with the county.

    However, in this instance, the Commission must consider the effect of Code Section 19-23-15. Code Sections 25-4-105(3)(a) and 19-23-15 should be read inpari materia. The case law in this state consistently supports the fundamental principle of statutory construction that specific statutes control over general statutes. For example, McCory v. State, 210 So. 2d 877 (Miss. 1968) and Lincoln County v. Entrican, 230 So. 2d 801 (Miss. 1970).

    Specifically, in McCaffrey's Food Market Inc. v. Mississippi Milk Commission, 227 So.2d 459, Miss. 1969), the State Supreme Court stated, "The rule is well established that where a special and particular statute deals with a special and particular subject its particular terms as to that special subject control over the general statutes dealing with the subject generally."

    Therefore, based on the above, the Commission finds that the simultaneous employment of an attorney as county prosecuting attorney and as attorney for the county board of supervisors as anticipated and authorized in Code Section 19-23-15 does not as such violate the conflict of interest laws.

    Notwithstanding the above, an attorney holding one of these positions cannot use that position to obtain one of the other positions. Such an action by the attorney would violate 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, public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests. In this instance, the requestor must not use his positions as county prosecuting attorney and/or city board attorney to obtain the position of attorney for the county board of supervisors.

    As county prosecuting attorney and/or city board attorney, the requestor should totally and completely recuse himself by avoiding discussions with the county board of supervisors on the question of appointment of their board attorney. This includes casual comments, as well as detail discussions, made in person, by telephone or by any other means.
 

Ronald E. Crowe Executive Director