This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on October 6, 2000, basing its approval solely on the facts and circumstances stated herein.

May an alderperson who is a deputy county tax collector continue to serve on the board of aldermen when the board of aldermen of which the alderperson is a member authorizes an interlocal agreement between the county and the city whereby the county tax collector will continue to collect city taxes for the city?

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 25-4-103(f)(i)(ii), (g)(i)(ii), (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; and

(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.

(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) 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."

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

I am the City Attorney for the Town. We would appreciate your issuing an advisory opinion regarding the following issues:

1. May an alderperson continue serving in the capacity of alderman when that individual has become employed by the county tax collector's office? The Town entered into an interlocal agreement with the county for the county to collect city taxes for the town before the alderperson became employed by the county.

2. May that same alderperson continue to serve on the Board of Aldermen when there is a resolution presented to the Board for the county to continue collecting city taxes for the town?

The Commission formally adopts Advisory Opinion No. 99-095-E, with attachments, in response to this request and by attachment incorporates it into this opinion.

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

Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a member of a governmental board, including an alderperson, from having an interest, direct or indirect, in any contract authorized by that member's governmental board during his or her term or within one year thereafter.

As set forth in the attached Advisory Opinion No. 99-095-E, ISSUE 4, a circumstance can exist that would cause a violation of both Constitutional Section 109 and Code Section 25-4-105(2) should a member of a city's governing board be employed as a deputy county tax collector.

That circumstance involves a contract between the city and county authorized by the board of which the public servant is a member, in which the public servant, as a salaried county deputy tax collector and city alderperson, would have a private pecuniary interest. Interlocal agreements for tax collections between a city and county are consider contracts for purposes of the state conflict of interest laws.
 
 

Therefore, an alderperson accepting a position as deputy county tax collector or currently serving in a position of deputy county tax collector would violate Constitutional Section 109 and Code Section 25-4-105(2), both cited above, if the interlocal agreement between the city and the county for the county tax collector's office to collect the city's taxes was entered into during the alderperson's term, was renewed during the alderperson's term and/or if payments under such an agreement are made or continued during the alderperson's term. Also, the same prohibitions that apply during the alderperson's term apply within one year after the alderperson's term ends.

The requestor is cautioned to advise the alderperson that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2). Even without a 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.

An advisory opinion is not the proper process to determine whether or not a violation of the state conflict of interest laws has already occurred. An investigation is the only method whereby a determination can be made as to whether probable cause exists to believe that a previous or current circumstance violates the state conflict of interest laws.
 
 
 
 

Ronald E. Crowe

Executive Director