This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 3, 1996, basing its approval solely on the facts and circumstances stated herein.

May constables enter into contracts with the county they are elected to serve for collecting delinquent fines and be paid a contingent fee on the successful collections?

    The Attorney General's Office has referred your letter of April 1, 1996, to the Mississippi Ethics Commission as it concerns an issue covered by the Mississippi Ethics in Government Law. The Attorney General's Office will answer all other questions raised in your letter by official opinion.

    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:

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 (f)(i)(ii), (g)(i), (h), (1) 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.

(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) 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.

(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."

    Pertinent facts and circumstances in the form of the requestor's letter dated April 1, 1996, absent identifying data, are by attachment incorporated into and considered a part of this opinion.

    The Commission formally acknowledges Advisory Opinion No. 95-002-E, Issue 1, in regard to this request and by attachment incorporates it into this opinion. This opinion will supersede Advisory Opinion No. 95-002-E, Issue 1, until Code Sections 19-3-41 (3) and 25-7-27 (3) stand repealed from and after July 1, 1998.

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

    Normally, constables' contracting with their county for any purpose, including the collection of delinquent fines, would be prohibited by the above cited Code Section 25-4-105 (3)(a). This is because the constables would be contractors with the county that they serve as officers.

    However in this instance, the Commission must consider the effect of the 1995 Legislature's amendments to Code Sections 19-341 and 25-7-27, 1972 Mississippi Code Annotated. Code Sections 19-341 and 25-7-27 should be read inpari materia with the above cited Code Section 25- 4-105(3)(a). The case law in this state consistently supports the fundamental principle of statutory construction that specific statutes control over general statutes. For example, McCory v. State , 210 So.2d 877 Miss. 1968) and Lincoln County v. Entrican , 230 So.2d 801 (Miss. 1970).

    Specifically, in McCaffrey's Food Market Inc. v. Mississippi Milk Commission , 227 So.2d 459, Miss. 1969), the State Supreme Court stated, "The rule is well established that where a special and particular statute deals with a special and particular subject its particular terms as to that special subject control over the general statutes dealing with the subject generally."

    Therefore, the Commission finds that the constables' contracting with their county to collect delinquent fines for a contingent fee based on successful collections, as anticipated and authorized in Code Sections 19-3-41 and 25-7-27, would not be prohibited by the conflict of interest laws.

    Notwithstanding the above, the constables may not use their official positions in order to obtain contracts with their county to collect delinquent fines. Such actions by the constables would violate the above cited Code Section 25-4-105 (1).

    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, public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests.

    The constables should totally and completely recuse themselves by avoiding discussions with the county board of supervisors on the question of contracting with them to collect the delinquent fines. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

    They must view the issue presented by the requestor also 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, a constable collecting delinquent fines for the county that the constable is elected to serve has the potential of creating suspicion among the public and reflecting unfavorably upon the county. This is especially true since the constable's statutory duties include serving arrest warrants on persons who are delinquent in paying criminal fines.

    Conflicts arising from a defendant's Constitutional rights or from governmental accounting and auditing standards and not from the State's Ethics in Government laws must be addressed by the Attorney General's Office.
 
 
 

Ronald E. Crowe Executive Director