This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 12, 1996, basing its approval solely on the facts and circumstances stated herein.

1. May an alderman provide services to his or her municipality and be compensated for those services?

2. May a police officer contact his father's wrecker service, where he works when off duty, to tow wrecked, confiscated or abandoned vehicles within the municipality's jurisdiction?

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(d), (f)(i)(ii), (g)(ii), (h), (k)(i)(ii), (1), (p)(i)(ii)(iii) and (q) states:

"(d) 'Business with which he is associated' means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1000.00) in annual income or over which such public servant or his relative exercises control.

(f) 'Contract' means:
 

(i) Any agreement to which the government is a party; or

(ii) Any agreement on behalf of the government which involve
es the payment of public funds.

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

(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.

(k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:
 

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);
 
(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).

(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 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.
 

(q) 'Relative' means the spouse, child or parent."

Code Section 25-4-105(1), (2) 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.

(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.

(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."

As City Clerk, I have been advised by the mayor to request an opinion on these issues.
May an alderman provide service to his Municipality and be compensated for those services?

May a police officer contact a wrecker service, which is owned by his father, and he also works there, to tow a vehicle which has been confiscated for drugs, etc.?

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

ISSUE 1. Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit an alderman from performing services for his or her municipality for compensation during the alderman's term and for one year thereafter.

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 member's board nonetheless results in a contract in which the board member has a prohibited interest.

ISSUE 2. Code Section 25-4-105(3)(a), cited above, would prohibit the police officer's father's wrecker service from contracting with and being paid by the municipality if the police officer has a material financial interest in the business.

Also, the requestor is cautioned to advise the police officer to remain keenly aware of the above cited Code Section 25-4-105(1).

Code Section 25-4-105(1) prohibits the police officer from using his position to obtain a pecuniary benefit for himself, his relatives and any business with which he is associated. The police officer's contacting of his father's wrecker business to tow a vehicle that the police department has authority to remove would violate Code Section 25-4-105(1). In addition, the police officer's contacting of the wrecker business for which he works would violate Code Section 25-4-105(1). It would not matter whether the towing charge was being paid by the municipality or the vehicle's owner.

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 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, the police officer or the police department's contacting the police officer's father's wrecker service to remove a vehicle has the potential of creating suspicion among the public and reflecting unfavorably upon the municipality.

Ronald E. Crowe Executive Director