Mississippi Advisory Opinions September 08, 1986: 19860908 (September 08, 1986)

Advisory Opinion Text

James G. McLemore, Jr., Esquire

City Attorney

Post Office Box 168

Carthage, Mississippi 39051

Dear Mr. McLemore:

Attorney General Edwin Lloyd Pittman has received your opinion request and has assigned it to me for research and reply. Your letter states:

“I am writing as Attorney for the City of Carthage, Mississippi, a special charter city.

“The Special Charter has no specific provision with reference to the following situation and I am therefore writing to you seeking your opinion and guidance.

“Officer X is presently a patrolman with the City of Carthage Police Department and has been for several years. In accordance with the provisions of our Special Charter, we are conducting elections for Mayor and Alderman this year and one of the candidates is Mrs. X, the wife of Officer X.

“My question is as follows: In the event that Mrs. X is elected as Alderman would the continuation of the employment of Officer X of the City of Carthage Police Department violate the statute with reference to nepotism or with reference to pecuniary benefits.”

In regard to nepotism, enclosed is a former opinion of this office dated August 26, 1983, to Robert S. Cooper, which states that “a policeman not the municipal chief of police” does not occupy any one of the five positions listed in Miss. Code Ann. § 25-1-53 (Supp. 1985) (nepotism) and, therefore, the prohibitions of said statute do not apply. The Cooper opinion was reaffirmed in an opinion dated February 8, 1985, to John Riemenschneider, a copy of which is also enclosed.

As to pecuniary benefits, the Cooper opinion discusses the provisions and application of Miss. Code Ann. § 25-4-105(1) (Supp. 1985) . However, the provisions of § 25-4-105(2) (f) which read as follows should also be noted:

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.

In essence, § 25-4-105(2) (f) is a restatement of Article 4, Section 109 of the Mississippi Constitution of 1890 which 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.

Mrs. X would have an interest in her spouse's contract of employment with the City of Carthage Police Department. In the event Mrs. X is elected as alderman, she would become a member of the board of aldermen which would approve the bi-monthly city payroll which would necessarily include the approval of payments to her spouse Officer X. The board of aldermen would also approve and finance by appropriate tax levies the budget of the police department and would also pass upon any raises in salaries for city employees. Such approval of payrolls, raises and the budget by the board of aldermen would constitute a violation of § 25-4-105(2) (f) and Section 109 of the Constitution by Mrs. X while serving as a member of said board.

Very truly yours,

Edwin Lloyd Pittman Attorney General