May a county election commissioner simultaneously serve as a circuit court bailiW~.

    Your opinion request to the Office of the Attorney General dated February 16, 1996, was referred by that Office to the Mississippi Ethics Commission on February 26, 1996, as your request involves the above issue that concerns the Mississippi conflict of interest laws.

    State law restricts the Mississippi Ethics Commission 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, this opinion does not address the Mississippi laws outside the Commission's jurisdiction nor the governmental entities' internal rules and regulations.
 

The pertinent conflict of interest laws to be considered here are:

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(a), (g)(i)(iv)(v), (h), (1), and (p)(i)(ii)(iii) states:

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

(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.

(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 finds; or

(iii) Any individual who receives a salary, per diem or expenses paid in whole or in part out of finds authorized to be expended by the government."

Code Section 25-4-105(1), (3)(a) 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.

(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:

(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 respectfully request your opinion on the following question.

Is there a conflict with a county election commissioner also serving and being paid by the county as a Circuit Court Bailiff?

    It is the Commission's understanding that the circuit court bailiff referred to in the requestor's letter is one of the bailiffs allowed the sheriff by each judge of the circuit, chancery and county courts. The bailiffs are paid a per diem by the county on allowances of the court. If this understanding is incorrect, the requestor should immediately contact the Commission as this opinion would no longer be applicable.

    The Commission formally adopts Advisory Opinion No. 95-136-E in response to 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.

    The Commission finds that the bailiffs are within the same authority of the county government as the board of supervisors as they are appointed by the sheriff and paid by the board of supervisors.

    As set forth in the attached opinion, a county election commission is a separate authority of the county government from the board of supervisors.

    Therefore, the exception found in Code Section 25-4-105(4)(h), cited above, would allow the election commissioner to be employed by and compensated by a separate authority of the county government, in this case as a bailiff, without being in violation of the above cited Code Section 25-4-105(3)(a).

    Notwithstanding the above, the Commission cautions the requestor to advise the election commissioner to not use his or her official positions to obtain a pecuniary benefit for himself or herself in violation of the above cited Code Section 25-4-105(1). In particular, the requestor as an election commissioner should recuse himself or herself from all matters coming before the county election commission that concerns the county board of supervisors and/or any member thereof; the county sheriff and/or the circuit judges.

    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, the public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests. An abstention is a vote with the majority of the governing entity's board and therefore does not qualify as a recusal.

    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 other board members, staff or any other person prior to and after the official meeting. This includes casual comments, as well as detail 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.

    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 it is 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, a member of the county election commission simultaneously serving as a bailiff has the potential of creating suspicion among the public and reflecting unfavorably upon the county.

    The Commission advises the requestor to seek an official opinion from the Attorney General concerning how the circumstances presented herein may be affected by the State Election laws. The Office of the Attorney General has given past indications that public officers or public employees serving as election commissioners may be prohibited by State Election laws.
 
 

Ronald F. Crowe Executive Director