May a person appointed to fill only an interim term on the county board of supervisors:

1. return to his previous employment position with the county district that he was serving as supervisor when the interim term is over?

2. return to his previous employment position with the county district that he was serving as supervisor when the interim term is over if he abstained from any vote concerning the budget of the county?

    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 entity's internal rules and regulations.
 

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 254-103 (f)(i)(ii), (g)(i), (h) and (p)(i)(ii)(iii) states:

"(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.

(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.

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

(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.
 

As attorney for the County Board of Supervisors, I am presented with a situation unique, at least to me. Earlier this year the previous member of the Board of Supervisors resigned. With the absence of the supervisor from the board the remaining board members wish to appoint an individual who has previously been working for the departed supervisor's beat to fill the interim period until the fall elections when a replacement supervisor will be elected.

The concern I have is that between Section 109 of the Constitution and Section 25-4-103 et seq. the appointee could be deemed to be prohibited from returning to his former employment with the county as it could be argued that he would have an interest in a contract with the board of which he had been a member.

My first question is:

"Does Mississippi law allow a person appointed specifically to fill only an interim term on the Board of Supervisors to return to his previous employment with the county when the term is over under the same terms and conditions as when he took his leave of absence to accept appointment to the board?"

My second question is:

"If the individual appointed to fill the interim term abstained from any vote concerning the budget of the county would he then be allowed to return to his former employment under the same terms and conditions as when he took a leave of absence to accept appointment to the board?"

It seems inheritably unfair that a county employee of long standing and good

reputation who is willing to assist the county by serving a few months on the Board of Supervisors would then be prohibited from returning to his former job solely because he, in effect, helped the county for those few months.

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

    Code Section 25-4-105(3)(a), cited above, would require that the county employee resign his employment position with the county before accepting the appointment to the board of supervisors.

    This finding is supported by the exceptions set forth in the above cited Code Section 25-4- 105(4)(h). This subsection only allows a public servant to be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which he or she is a member, officer, employee or agent.

    Clearly, the county board of supervisors is the authority of the governmental entity presently employing the public servant.

Constitutional Section 109 and Code Section 25-4-105(2), both cited above, clearly prohibit a board member of a governmental entity from having an interest, directly or indirectly, during his or her term or for one year thereafter in any contract authorized by his or her board. [Emphasis added]

    Regarding Issue 1, Constitutional Section 109 and Code Section 25-4-105(2) prohibit the county's re-employment of the interim supervisor within one year of the date that he leaves the board of supervisors.

    Regarding Issue 2, the requestor is cautioned to advise the board member 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.

    The requestor's concern for fairness for those that may choose to serve as public officers on a governing board can best be addressed by the Mississippi Supreme Court's decision in Frazier v. State, 504 So.2d 675 (Miss. 1987). The Court stated, "First, it is clear [Section 109] is to protect the government. It is not a provision to protect individual rights. It is not concerned with whether some individual or class of individuals may suffer from its enforcement. As noted in Noxubee County Hardware Co., supra, the transgression test is intended to be mechanistic and objective, and motives and intentions of persons who violate it are immaterial. Its purpose is to remove any temptation to invade its proscription.

    It is also a self-executing section, and more specific than many, perhaps most, constitutional provisions. It prohibits an individual having an interest in a contract when he as a public officer served on the official body which enabled the contract to come into being. It is that simple. Being self-executing, its provisions cannot be modified or encroached upon by the Legislature."
 
 
 
 

Ronald B. Crowe Executive Director