This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on November 1, 1996, basing its approval solely on the facts and circumstances stated herein.

Issue 1. May the fire chief of the local volunteer fire department purchase through the city's budget auto repair parts and equipment from the local parts store employing him for the benefit of the department?

Issue 2. May two members of the board of aldermen serve as secretary and treasurer of the local volunteer fire department when the department receives funds budgeted by the city board and benefits from expenditures approved by the city 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 25-4-101 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(c), (d), (f)(i)(ii), (g)(ii), (h), (k)(i)(ii), (1) and (p)(i)(ii)(iii) states:

"(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:

(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."

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."

In addition to the facts and circumstances addressed in the attached letter, the Commission's staff was advised by the city clerk's office that the fire chief is purchasing for and on behalf of the city through the city's budget and the invoices representing the purchases are presented to the board of aldermen on the claims docket for approval just as all other city departments' claims. Further, the Commission's staff was advised by the city clerk's office that the fire chief, the other department officers and the volunteer fire-fighters are not compensated for their services.

The Commission formally adopts Advisory Opinion No.96-01 1-E and No. 95-050-E 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. In the attached Advisory Opinion No.96-01 1-E, the Commission in considering a similar situation opined:

"The Commission finds that an uncompensated volunteer fire fighter serving a publicly owned fire department meets both requirements of Code Section 25-4-103(p)(ii) and is a public servant. Therefore, he or she would be prohibited by Code Section 25-4-105(3)(a) from being a contractor, subcontractor or vendor with the municipality and/or its publicly owned fire department.

Notwithstanding the above, the Commission finds that if the uncompensated volunteer fire fighter has been serving a volunteer fire department established as a non-profit corporation that situation does not meet the requirements of Code Section 25-4- 105(p)(ii). Even though a non-profit volunteer fire department receives public funds and/or expends, authorizes or recommends the use of public funds, it is not a government or agency thereof, or a public entity created by or under the laws of the State or created by an agency or governmental entity of the State."

Therefore, the fire chief is an "agent' of the city and by that a "public servanf' under the definition set forth in Code Section 25-4-105(p)(ii). As an agent of the city, he cannot have a material financial interest, as set forth in the above cited Code Section 25-4-105(k)(i)(ii), in a business that is a vendor with the city. Code Section 25-4-105(3)(a), cited above, prohibits the city from having as its vendor the auto parts store that employs its agent, the fire chief, who has a material financial interest in the auto parts store.

Issue 2. As set forth in the attached Advisory Opinion No. 95-050-E, members of a city governing authority, the mayor and board of aldermen, are not as such prohibited by the conflict of interest laws from being part of a volunteer fire department serving the city if they are uncompensated.

As stated in the attached opinion, an alderman is prohibited from being compensated by the city for serving as a volunteer fire-fighter by the above cited Constitutional Section 109 and Code Section 25-4-105(2).

The requestor is cautioned to advise the board 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 the board members' vote, the authorization by the members' board nonetheless results in a contract in which the board members have a prohibited interest.

Notwithstanding the above, the board members should remain keenly aware of Code Section 25-4-105(1) and Code Section 25-4-101, cited above, even if they are uncompensated volunteer fire-fighters.

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 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.

Therefore, the aldermen should totally recuse themselves from any matter coming before the city's governing authority that concerns the volunteer fire department.

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 aldermen voting on a budget and expenditures that benefit the volunteer fire department that they are officers of has the potential of creating suspicion among the public and reflecting unfavorably upon the city. Therefore, they should totally recuse themselves from any matter coming before the city's governing authority that concerns the volunteer fire department.

Ronald E. Crowe Executive Director