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 March 1, 1996.

1. May the attorney for the county board of supervisors represent criminal defendants before the county's courts?

2. May a county supervisor and/or county board attorney serve on a planning and development district board when the county they serve funds the planning and development district?

    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 25-4-103(a), (c), (d), (f)(i)(ii), (g)(i)(iv)(v), (h), (k)(i)(ii), (1) and (p)(i)(ii)(iii) states:

"(a) 'Authority' means any component unit of a governmental entity.

(c) 'Business' means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a non-profit corporation or other such entity, association or organization receiving public funds.

(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 ($1,000.00) 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 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;

(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.

(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 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), (2), (3)(a), (4)(b) and (4)(h) 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.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(b) May be a contractor or vendor with any authority of the governmental entity other than the authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which he is a member, officer, employee or agent where such contract is let to the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received or where the goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws.

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee."

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

I serve as attorney for the Board of Supervisors of the County, and it appears that I can no longer represent a defendant in a criminal matter in any of the Court's of the County, even though I may be appointed to do so by the Court. I haven't seen any of your opinions regarding this, and I would like to request any published opinions relating to this or other ethical matters relating to board attorneys.

Also, the Board of Supervisors appointed me as a member of the Planning and Development District, which of course the County contributes some public funds to yearly. I would like to inquire if there is any conflict with being Board Attorney and being a Board Member of the Planning and Development District. I would assume that should there be, there would probably also be a conflict with a member of the Board of Supervisors or Board of Aldermen, which represent quite a number of the planning and development district's board members. if this is the case, I would like to request an advisory opinion on this. It may be that you may wish to issue a formal opinion, because I'm certain this would effect a great number of people.

    The Commission formally adopts Advisory Opinions No. 95-076-E, with attachments, and No. 92-203-ER in response to this request and by attachment incorporates them 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 Advisory Opinion No. 95-076-E, the representation of criminal defendants before the courts of the county by the attorney for the county board of supervisors is not prohibited by the conflict of interest laws.

    Notwithstanding the above, Advisory Opinion No. 95-076-E also states that payments by the county to the county board attorney for serving as a part-time public defender or as an indigent's counsel when the payments accrue to the board attorney's firm are prohibited by the above cited Code Section 25-4-105(3)(a), unless the exceptions found in the above cited Code Section 25-4-105(4)(b) applies.

    The exceptions in Code Section 25-4-105(4)(b) allow a public servant or the public servant's business to contract with an authority of his or her governmental entity other than the authority of the governmental entity employing the public servant. As set forth in the attached opinions, the county board attorney and the public defender's office, as well as an appointed indigent's counsel, are within separate authorities of the county government. Therefore, the payments accruing to the board attorney's firm for his or her service as a part-time public defender or as an indigent's counsel only would be allowed if these services were reasonably available from two (2) or fewer sources.

    The Commission recognizes that Code Section 25-4-105(4)(h), cited above, allows an employee of one authority of a governmental entity to be employed by and to receive compensation from another authority of that same governmental entity. In fact, the Commission has opined that a county board attorney may be appointed youth court judge because the youth court judge is appointed by the chancery judge which also sets the salary, thereby making it a separate authority of the county government.

    Notwithstanding the above, it is the Commission's understanding that the professional rules governing attorneys recognize that any contract to represent a client held by a member of a law firm is actually held by the law firm. A law firm partner cannot hold himself apart from the firm to represent one or more clients. This understanding is consistent with opinions of the Mississippi State Bar. Therefore, it is the Commission's finding that the exception found in Code Section 25-4- 105(4)(b), and not the exception found in Code Section 25-4-105(4)(h), must be applied to a county board attorney serving as a part-time public defender or as an indigent's counsel because both involve the representation of a client.

    Issue 2. In the attached Advisory Opinion No. 92-203-ER, the Commission held that planning and development districts are governmental entities under the definition set forth in the above cited Code Section 25-4-103(gv). Therefore, the public servants appointed to a planning and development board are concerned only with competing public interests and not private interests, as long as they are not compensated for their service on the planning and development board.

    Based on this finding, the Commission concluded that public servants, including members of various local governmental boards, serving as members of the board of directors of planning and development districts does not preclude the planning and development districts from contracting with those governmental entities.

    In regard to both Issues, the requestor is cautioned to not use his official position(s) to obtain a pecuniary benefit for himself, a relative or a business with which he or she is associated in violation of the above cited Code Section 25-4-105(1).

    In order to avoid using ones official position(s) as prohibited in Code Section 25-4-105(1) a public servant must totally and completely recuse himself or herself from any action that concerns the prohibited interest.

    A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during the official meeting, but also avoid discussing the subject matter with board members, staff or any other person prior to and after the official meeting. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

    Also in order to properly recuse oneself from a matter, the public servant must leave the room or area where such discussions, considerations and/or actions take place. The minutes of the governing entity's board should state the public servant left the meeting by showing him or her absent for that matter.

    In regard to board members, 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 board member's vote, the authorization by the member's board nonetheless results in a contract in which the board member has a prohibited interest.
 

Ronald E. Crowe Executive Director