This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on June 1, 2001, basing its approval solely on the facts and circumstances stated herein.
May a municipal police department include a police officer's wrecker service on its rotation list of towing businesses that it calls to remove a disabled vehicle at the expense of the vehicle owner during a traffic accident investigation?
Your opinion request to the Office of the Attorney General dated May 11, 2001, was referred by that Office to the Mississippi Ethics Commission on May 14, 2001, as your request involves the above issue that concern the Mississippi conflict of interest laws.
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(c), (d), (f)(i)(ii), (g)(ii), (h), (k)(i)(ii), (l) 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 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) '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).
(l) '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 provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
The undersigned is the City Attorney for the City and in that capacity has been requested by the Mayor and Board of Aldermen to obtain your opinion as to the following matters.
At the present time there are two wrecker services operating in the City, namely A Wrecker Service and B Wrecker Service. A City police officer has opened a wrecker business known as C Wrecker Service.
Currently, when a wreck occurs and a vehicle needs to be picked up by a wrecker, the police department or the officer working the accident calls for a wrecker service on a rotating basis between A Wrecker Service and B Wrecker Service unless the owner requests some other wrecker service to pick up the vehicle.
Code Section 25-4-105(3)(a), cited above, prohibits the police officer's wrecker service from providing towing services to and/or being paid for those services by the municipality.
Code Section 25-4-105(1), cited above, prohibits the police officer from contacting his wrecker service when he is the police officer working the accident and prohibits the police officer from recommending his wrecker service to a disabled vehicle's owner when he is the police officer working the accident.
If the disabled vehicle's owner and not the municipality is responsible for the cost of the towing service, Code Section 25-4-105(1) will not prohibit the municipality's police department from including a police officer's wrecker service in its rotation for towing service if the municipality's police dispatcher makes the service call to the police officer's wrecker service and if the dispatcher makes the service call to the police officer's wrecker service only when it is next on the rotation list.
Also, Code Section 25-4-105(1) will not prohibit a disabled vehicle's owner from requesting the police officer's wrecker service if the disabled vehicle's owner and not the municipality is responsible for the cost of the towing service.
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.
A municipality's police department including a police officer's wrecker service on its rotation list of wrecker businesses it contacts to remove a disabled vehicle during an accident investigation is a circumstance that has the potential of creating suspicion among the public and reflecting unfavorably upon the municipality.
To avoid violating the public policy mandate set forth in Code Section 25-4-101, the municipality must either decline to include the police officer's wrecker service on the rotation list or establish a system that eliminates the creation of public suspicion and the unfavorable reflection upon the municipality.
A system that complies with the public policy mandate set forth in Code Section 25-4-101 should at a minimum include the following procedures.
First, the police officer working the accident should be prohibited from directly contacting a wrecker business. Instead, the police officer working the accident should notify the dispatcher that a wrecker is needed and the dispatcher should contact the wrecker service next on the rotation list.
Secondly, the police department's dispatchers must maintain a permanent, up-to-date log that contains sufficient information to show that the wrecker businesses on the rotation list are contacted only when they are next on the rotation list.
Finally, a disabled vehicle's owner requesting the police officer's
wrecker service should be required to sign a statement that the police
officer did not recommend his wrecker service if the police officer is
working the accident.
Ronald E. Crowe
Executive Director