This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 6, 2004, basing its approval solely on the facts and circumstances stated herein.
 

ISSUE 1. May a part-time deputy sheriff sell gravel to the county if he resigns his position as part-time deputy sheriff?

ISSUE 2. May a full-time deputy sheriff be appointed by the board of supervisors to the position of county election commissioner?

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(a), (e), (f)(i)(ii), (g)(i), (h), (i), (k)(i)(ii), (l) and (p)(i)(ii)(iii) states:
 

“(a) ‘Authority’ means any component unit of a governmental entity.

(e) ‘Compensation’ mean money or thing of value received, or to be received, from any person for services rendered.

(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.

(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.

(i) ‘Income’ means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.

(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), (3)(a) and (4)(b)(d)(h) 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.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(b) May be a contractor or vendor with any authority of the governmental entity other than the authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which he is a member, officer, employee or agent where such contract is let to the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received or where the goods, services or property involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws.

(d) May be a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which is a contractor, subcontractor or vendor with any  authority of the governmental entity of which he is a member, officer, employee or agent: (i) where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws; or (ii) where the contractual relationship involves the further research, development, testing, promotion or merchandising of an intellectual property created by the public servant.

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee.”

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

Please provide me with your written decision concerning the above individuals and the following facts:

1 An individual submitted the lowest bid for gravel to the County Board of Supervisors.  At the time of said submission, the individual was employed on a part-time basis with the County Sheriff’s office as a deputy sheriff.  Subsequently, the individual has resigned his position as deputy sheriff, which has removed the violation of the Mississippi Ethics Commission.  Please convey to me in writing your decision that was previously given to me in a telephone conversation.

2. Another individual is proposed to be appointed by the County Board of Supervisors as Election Commissioner for the County.  Presently, this individual is employed on a full-time basis with the County Sheriff’s office as a deputy sheriff.

The Commission formally adopts Advisory Opinions No. 04-008-E and No. 96-112-E in response to this request and by attachment incorporates them into this opinion.

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

ISSUE 1.  The Commission formally adopts Advisory Opinion No. 04-008-E in response to this request and by attachment incorporates it into this opinion. These two opinions address the same factual scenario presented by two separate requests from the same county. They should be read together to fully understand the surrounding facts.

In answer to the specific request in this instance, Code Section 25-4-105(3)(a), cited above, will prohibit a part-time deputy sheriff from selling gravel to the county with which he is employed based on the facts provide to the Commission.  Also, the resignation of the part-time deputy sheriff will allow him to avoid the Code Section 25-4-105(3)(a) violation and thereby sell gravel to the county.
 
ISSUE 2.  As set forth in the attached Advisory Opinion No. 96-112-E,  a county election commissioner being employed by the county sheriff’s department would not as such violate the conflict of interest laws.

This opinion is based on the finding that a county election commission is a separate authority of the county government from the board of supervisors and the other county-wide elected offices.  This finding brings into effect the exception found in the above cited Code Section 25-4-105(4)(h).

Notwithstanding the above, the Commission cautions the requestor to advise the individual in question not use his official positions to obtain a pecuniary benefit for himself in violation of the above cited Code Section 25-4-105(1).  In particular, the individual in question as an election commissioner must recuse himself from all matters coming before the county election commission that concerns the county sheriff.

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, the public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests.  An abstention is a vote with the majority of the governing entity’s board and therefore does not qualify as a recusal.

A total and complete recusal requires that the public servant not only avoid debating, discussing, or taking action on the subject matter during the official meeting, but also avoid discussing the subject matter with other board members, staff or any other person prior to and after the official meeting.  This includes casual comments, as well as detail discussions, made in person, by telephone or by any other means.

Also in order to properly recuse oneself from a matter,  the public servant must leave the room or area where such discussions, considerations and/or actions take place.  The minutes of the governing entity’s board should state the public servant left the meeting by showing him or her absent for that matter.

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 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, an employee of the county sheriff’s department serving as a member of the county election commission has the potential of creating suspicion among the public and reflecting unfavorably upon the county election commission as set forth above in Code Section 25-4-101. Therefore, the Commission’s opinion is that an employee of the county sheriff’s department serving as a county election commissioner does not fully protect the integrity of the election process and does not fully comply with the public policy mandate set forth in Code Section 25-4-101.  Thus, the Commission feels the board of supervisors should consider appointing someone who is not employed by an elected official who could potentially be involved in an election contest.

The Commission advises the requestor to seek an official opinion from the Attorney General  concerning how the circumstances presented herein may be effected by the State Election laws.  The Office of the Attorney General has given past indications that public officers or public employees serving as election commissioners may be prohibited by State Election laws.

Also, the requestor is also advised to contact the State Attorney General’s Office regarding whether the holding simultaneously of the public offices of county election commissioner and deputy sheriff is prohibited under the Separation of Powers Doctrine. See Article 1, Section 2, Mississippi Constitution of 1890.
 

Scott Rankin
Executive Director