Mississippi Advisory Opinions December 14, 1994: AGO 94-0799 (December 14, 1994)

Advisory Opinion Text

Honorable S.A. Tapp

Honorable James E. Huddleston

Honorable R.M. Hutchinson

Honorable Bobby G. Richardson

Honorable Herman Smith

Election Commissioners

Circuit Court Office

Ripley, Mississippi 38663

Re: Allowable Work Days for County Election Commissioners

Dear Commissioners:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

“In order to implement the changes mandated by the NVRA effective January 1, 1995 we, the Election Commissioners of Tippah County, believe that additional work will be involved beyond the days now authorized by Section 23–15–153 of the Election Code.

Your opinion is requested as to whether the Election Commission may employ election commissioners to do the additional work. Would this be permitted under Section 23–15–219 of the Election Code?”

Mississippi Code Annotated, Section 23–15–219 (Revised 1990) provides in part:

“(1) The board of election commissioners is hereby authorized and empowered to employ and set or determine the duties of and determine the compensation of such investigators, legal counsel, secretaries, technical advisors and any other employees or persons who or which said board or a majority thereof other employees or persons who or which said board or a majority thereof may deem necessary to enable them to discharge the duties and obligations presently or hereafter vested in them. However, before employing such persons or setting or determining said compensation, the election commissioners must first have the approval of the board of supervisors of the county. * * *

(3) Nothing in this section shall be construed to prohibit a person who holds the office of commissioner of election from being employed and receiving compensation pursuant to this section. Any compensation which such a person may receive from his employment pursuant to this section shall be in addition to any compensation such person may receive in performing his duties as a commissioner of election.”

The above quoted statute does provide for the employment of election commissioners upon proper factual determinations and approval by the appropriate board of supervisors in accordance therewith. However, Section 25–4–105(3)(a) (Supp.1994) which is a part of our ethics laws provides:

“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, ....”

Also, please see the enclosed copy of Advisory Opinion No. 91–110–E, dated November 1, 1991 issued by the Mississippi State Ethics Commission (the Commission). In summary, that opinion expresses the Ethics Commission's belief that Section 23–15–219 (1) and (3) conflicts with Section 109 of the Mississippi Constitution and suggests that a county board of election commissioners follow the Constitution which, in the opinion of the Commission, prohibits a board from hiring one of its members. We concur with the Ethics Commission in this opinion and recommend that this practice be avoided.

Sincerely,

Mike Moore Attorney General

Phil Carter, Assistant Attorney General.

Attachment

ADVISORY OPINION NO. 91–110–E

November 1, 1991

This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on November 1, 1991.

Do the Mississippi Ethics in Government laws and/or Article IV, Section 109 of the 1890 Mississippi Constitution prohibit a Board of Election Commissioners from employing one of its members?

The issue at hand has three different areas of possible concern:

1. Mississippi Laws outside the jurisdiction of this Commission.

2. Any internal rules and/or regulations of a body which are in addition to (1) above. An example of this is the rules and regulations adopted by Board of Supervisors.

The above areas, 1. and 2. are mentioned solely for your possible concern and are not of further comment by this Commission as it lacks authority to render opinion—interpretation in these areas. The Commission suggests that the requestor seek interpretation in these areas from the proper authority.

3. The conflict of interest legal provisions interpreted by the Commission are Sections 25–4–101, et seq., 1972 Mississippi Code Annotated and Article IV, Section 109, Mississippi Constitution of 1890. The opinion which follows is restricted to this body of law—the conflict of interest laws. Please note the following:

Constitutional Section 109 provides:

“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(e), (f)(ii) and (k) states:

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

(f) ‘Contract’ means:

(ii) Any agreement on behalf of the government which involves the payment of public funds.

(k) ‘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.”

Code Section 25–4–105(1) and (2) 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.

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

On behalf of the a County Board of Supervisors, I respectfully request an opinion from the Mississippi Ethics Commission responsive to the following:

The Board of Election Commissioners proposes to employ one of its members, a duly elected Commissioner, at a specified hourly rate for a specific period of time to update and upgrade the voter registration rolls of the County. The proposed work activity by the Commissioner in question will be over and above the routine performance of Election Commissioners' duties in revising registration books and poll books and will involve computer programming and enhancement of voter registration data to provide more meaningful, thorough and accurate information regarding registered voters.

May the Board of Election Commissioners, consistent with the requirements of Section 109 of the Mississippi Constitution of 1890, as recently construed in Smith v. Dorsey , No. 07–CA–59273, decided September 4, 1991, slip opinion, page 10–11, employ and pay out of the general fund of the County the above compensation, in addition to any other compensation otherwise payable to Election Commissioners, for the Commissioner in question to perform the referenced computer programming work.

I am enclosing for your information a copy of an Attorney General's Opinion, wherein we were invited to consult with the Ethics Commission on the Section 109 issue and other conflict of interest concerns touching upon this issue.

As to the Ethics statutory provisions set forth above the Commission concludes that authorization of the Board of Election Commissioners to employ and compensate its members to perform necessary work that enables the board to carry out its own duties pursuant to Mississippi Code Section 23–15–219(1) and (3) as set forth by the Office of Attorney General in their opinion as attached, precludes application of Code Section 25–4–105(2) .

The Commission notes that Code Section 23–15–219(1) as partially quoted in the attached Attorney General's opinion additionally sets forth that compensation of such ... investigators, legal counsel, secretaries ..., is authorized. The Commission believes that such employment by a Board of Election Commissioners was, of course, envisioned by the Legislature, and that such authorization to employ would include the employment of a person to update and upgrade the voter registration rolls. Such employment as set forth in the requestor's letter constitutes a contract.

Without an order of the Board of Election Commissioners the Election Commission would be unable to proceed with the particular contractual arrangement described. Therefore, such authorization by the Election Commission in the opinion of this Commission brings in the prohibition of Section 109 of the Mississippi 1890 Constitution as cited above.

The Commission is of the opinion the particular member of the Board of Election Commissioners would have an interest in a contract authorized by his board as prohibited under Section 109.

The Commission believes that Code Section 23–15–219(1) and (3) conflicts with Section 109 of the Mississippi Constitution as those sections provide opposing answers to the requestor's questions as demonstrated above. However, only a court of law can address the constitutionality of any statute. Thus, in order to provide guidance, the Commission suggests that the Election Commissioner follow the Constitution which in the opinion of the Commission prohibits the board from hiring one of its members.

Ronald E. Crowe

Executive Director