Are the Mississippi Ethics in Government laws violated should deputy justice court clerks that own and operate a defensive driving school accept traffic violators ordered to attend such a school as part of their sentence by a justice court judge serving the deputy clerk's employer/county?

    The justice court judges within the deputy clerks' county are advised to contact the Mississippi Commission on Judicial Performance regarding this issue.

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

The county justice court deputy clerks are interested in starting a defensive driving school for young people age twenty and under that receive traffic violations. The question that we are proposing is it illegal for deputy clerks to teach the class or is it a conflict of interest with our jobs to teach the class. We know that we cannot talk to the students about the class, our judges would be the one to propose it to them and give them a choice on which class they would like to attend.

    In addition, the requestors have advised that their defensive driving school will not receive payments from the county. The traffic violators are required to pay all costs related to attending a defensive driving school ordered by a justice court judge.

    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 (c) , (d), (f) (i) (ii), (g) (i) (v) (h), (k) (i) (ii) , (1) and (p) (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 nonprofit 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) 'Government' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties;

(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 ($l,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:

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

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

(d) Perform any service for any compensation during his term of office or employment by which he attempts to influence a decision of the authority of the governmental entity of which he is a member."

    Notwithstanding the above, the requestors are advised to be cautious of any circumstances that may violate the above cited Code Section 25-4-105 (1), (3) (a) and (3) (d)

    Should the requestors use their positions as deputy justice court clerks in anyway to try to influence a justice court judge to order traffic violators to attend their school they would violate Code Section 25-4-105 (1) and (3) (d). Furthermore, their attempting to solicit traffic violators for their school while on duty as a justice court clerk would be an example of a "use of office" prohibition.

    In addition, the requestors would be in violation of Code Section 25-4-105 (3) (a) should they receive any funds directly from the county for services provided by their defensive driving school.

    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
 
Advisory Opinion No. 95-054-E
April 7, 1995
Page 5

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 and 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.
 

Ronald E. Crowe
Executive Director