This Advisory Opinion concerns the following issue 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 April 1, 1994.

Are the Mississippi Ethics in Government laws violated should the Mayor of a city with a Mayor - Council form of government become employed by a casino and perform duties in other states when the casino contracts with the city?

1. Mississippi Laws outside the jurisdiction of this Commission.

2. Any internal rules and/or regulations of a body which are in addition to (1) above. An example of this is the rules and regulations adopted by a city's council.

The above areas, 1. and 2. are mentioned solely for your possible concern and are not for further comment by this Commission as it lacks authority to render opinion - interpretation in these areas. The Commission suggests that the requestor seek interpretation in these areas from the proper authority.

3. The conflict of interest legal provisions interpreted by the Commission are Sections 25-4-101 through 25-4-119, 1972 Mississippi Code Annotated and Article IV, Section 109, Mississippi Constitution of 1890. The opinion which follows is restricted to this body of law - the conflict of . interest laws. Please note the following:

Advisory Opinion No. 94-046-E
April 1, 1994
Page 2

Constitutional Section 109 provides:

"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 provides:

"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 25-4-105 (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, 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."

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

I am requesting an advisory opinion on behalf of the Mayor of the City based on the following circumstances:

1. The City operates under the Mayor/Council form of government.

2. The City has a contract with a Casino which calls for the payment of certain fees and taxes to the City on a monthly basis from the operation of the Casino gaming facility located within the corporate limits of the City. The contract is renegotiated every year and is approved by the City Council. The Mayor does not have a vote under the Mayor-Council form of government with respect to any matters acted upon by the City Council.

The question posed herein is whether the Mayor can do work for the Casino which involves the making of speeches and appearances in other states to promote the Casino's business activities and new developments in those states and receive compensation from the Casino for those speeches and appearances. None of the work will in any way be related to the City's contractual arrangement with the Casino.

    As a working member of the Council and if simultaneously an employee of the casino which is under contract with the city, the Commission is of the opinion the Mayor would have an interest in a contract authorized by his board as prohibited under Section 109 and Section 25-4-105 (2), cited above.
 
 

Advisory Opinion No. 94-046-E
April 1, 1994
Page 4

    Without the order of the Council and subsequent action on the part of the Mayor, the city would be unable to proceed with the particular contractual arrangement described. Therefore, such authorization by the Mayor and the board, at which time he becomes employed by the casino in question, enacts the prohibition of Section 109 and Section 25-4-105 (2).

    In addition, it is noted that Code Section 25-4-105 (3) (a) would appear to prohibit the Mayor from being a contractor with the casino or having a "material financial interest" in the casino. The application of this provision is subject to some concern as regards Attorney General Mike Moore and the Mississippi Ethics Commission, ex rel, Chickasaw County, Mississippi v. Durwood McCullough , No. 91-CA-0079, decided November 4, 1993, Petition For Rehearing denied, wherein a Chancery Clerk was not deemed to be a "member" of the governmental entity involved. The Court held that "Employee is not a classification synonymous with "member." Therefore, Code Section 25-4-105 (3) (a) was not applicable to the Chancery Clerk in that instance.

    In response to the above court opinion, the 1994 Legislature amended 25-4-105 (3) (a) to clearly prohibit all public officials and public employees from contracting with the public body in which they serve, are employed or from having a "material financial interest" in any business contracting with the same public body. The legislation, House Bill 1480, will become effective immediately upon the approval by the United States Justice Department. The Commission fully expects the Justice Department to approve the legislation.

    In summary, the Mayor of the city is believed to be a working member of the Council and prohibited from being employed by the casino in violation of Constitutional Section 109 and Code Section 25-4-105 (2). The prohibition of Code Section 25-4- 105(3) (a) is also believed to be applicable when clarifying legislation is approved by the U.S. Justice Department.

                                                        Ronald E. Crowe
                                                        Executive Director