This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on June 7, 1996, basing its approval solely on the facts and circumstances stated herein.

May an executive committee member be appointed to serve on the resolution board and be paid the same amount as other members of the resolution board?

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(e), (f)(i)(ii), (g)(i)(ii)(iii)(iv)(v), (h), (o), and (p)(i)(ii)(iii) states:

"(e) 'Compensation' mean money or thing of value received, or to be received, from any person for services rendered.

(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;

(ii) Municipalities;

(iii) All school districts;

(iv) All courts; and

(v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.

(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.

(o) 'Public funds' means money belonging to the government.

(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(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."

We are requesting an opinion from the Ethics Commission pertaining to the payment to a Municipal Democratic Executive Committee member for serving as a member of the Resolution Board during an election.

If a member of the Executive Committee is appointed to serve on the Resolution Board by the Chairman, is the City Clerk allowed to pay the member the same amount of payment as a non-member of the Executive Committee?

First, there must be a determination of whether or not a municipal executive committee member is a public servant as defined by the above cited Code Section 25-4-103(p). if the municipal executive committee member is not a public servant, he or she would not be subject to the state's conflict of interest laws.

In making this determination, the Mississippi Election Code, Sections 23-15-1 et seq., 1972 Mississippi Code Annotated, was reviewed. In addition, the Election Division of the Secretary of State's Office was consulted. Specifically, Code Sections 23-15-171, 263, 309, 311, 313, 319, 505, 513, 523 and 921 were relied upon in formulating this opinion. Copies of these referenced code sections are attached to this opinion.

Code Section 23-15-171 states, "Each municipal executive committee shall have as many members as there are elective officers of the municipality, and such members of the municipal executive committee of each political party shall be elected in the primary elections held for the nomination of candidates for municipal offices." [Emphasis Added]

Code Section 23-15-263 states, "A member of a county executive committee shall be automatically disqualified to serve on the county executive committee, and shall be considered to have resigned therefrom, upon his qualification as a candidate for elective office." [NOT: Code Section 23-15-171 states that all primary elections in municipalities shall be held and conducted in the same manner as is provided by law for county primary elections. Furthermore, the Secretary of State's Office has advised that the restrictions on county executive committee members set forth in Code Section 23-15-263 apply equally to municipal executive committee members.]

Code Section 23-15-313 states, "if there be any political party, or parties, in any municipality which shall not have a party executive committee for such municipality, such political party, or parties, shall select temporary executive committees to serve until executive committees shall be regularly elected."

The above code sections are sufficient to conclude that municipal executive committee members are elected or appointed officials of their respective municipalities. Therefore, they are public servants for purposes of the conflict of interest laws under the definition of public servant set forth in Code Section 25-4-103(p)(i).

In addition, Code Sections 23-15-311 and 23-15-513 provide that the municipal executive committee in performing its public election function of holding primary elections will have the official tickets or ballots printed; employ and pay necessary managers, clerks and officers; and provide other necessary supplies. All of these to be paid for with municipal general fund monies.

These two referenced code sections are sufficient to find that for purposes of the conflict of interest laws the municipal executive committee members are municipal officials which expend, authorize or recommend the use of public funds. Therefore, they also are public servants under the conflict of interest law definition set forth in Code Section 25-4-103(p)(ii).

As public servants, the municipal executive committee members may not be interested, directly or indirectly, in any contract authorized by the board they are members of during their term or for one year thereafter as such interests are prohibited by the above cited Constitutional Section 109 and Code Section 25-4-105(2).

Code Section 23-15-523 clearly states that the resolution board is appointed by the officials in charge of the election. The municipal executive committees are in charge of the municipal primary elections. Therefore, the municipal executive committees would appoint the members of the resolution boards. [Emphasis Added]

The Commission finds that municipal executive committee members, as public servants, may not be appointed by their respective municipal executive committees to serve on the resolution board and to be compensated for such service as such appointments are prohibited by Constitutional Section 109 and Code Section 25-4-105(2).

The question remains may municipal executive committee members accept the appointment to the resolution board if they are compensated less than the other member or not compensated at all for their service.

Code Section 23-15-921 clearly states the executive committees must hear contests of the primary elections. Therefore, they may well be sitting in review of a resolution board action. Clearly,
this is an inherent conflict as an individual sitting on both entities would be reviewing his or her own decision.

It is the Commission's finding that the direct or indirect interests prohibited in Constitutional Section 109 and Code Section 25-4-105(2) involve not only pecuniary interests in a contract but also personal and/or professional interests in a contract that arise in inherent conflicts such as presented above.

Therefore regardless of whether or not they are compensated as resolution board members, municipal executive committee members are prohibited by the conflict of interest laws from serving on the resolution board appointed by their respective municipal executive committees.

The requestor is cautioned to advise the municipal executive committee members that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2). Even without their votes, the authorization by their respective executive committees nonetheless results in a contract in which the board member has a prohibited interest.

Ronald E. Crowe Executive Director