Mississippi Advisory Opinions February 05, 2016: AGO 2016-10 (February 05, 2016)

Advisory Opinion Text

AUTH: Avery Mounger Lee

RQNM: John McWilliams

SUBJ: Supervisors - Authority

SBCD: 220

Attorney for the Sunflower County Board of Supervisors

Post Office Box 107

Indianola, Mississippi 38751-0107

Re: Application of Miss. Code Ann. Section 25-1-113

Dear Mr. McWilliams:

Attorney General Jim Hood is in receipt of your opinion request and has assigned it to me for research and reply.

Facts

In your letter, you explain that the Sunflower Board of Supervisors is considering hiring a County Administrator. The candidate was indicted in 2006 in the United States District Court for the Northern District in Mississippi for violation of 18 U.S.C. 666(a)(1)(B) and 18 U.S.C. 1512(b)(1). The candidate pled guilty in 2007 to violation of 18 U.S.C. 666(a)(1)(B) - solicitation of a bribe by a public official - and was sentenced to imprisonment for a period of 14 months.

Question Presented

Can the Sunflower County Board of Supervisors legally hire [the individual] as County Administrator in light of Section 25-1-113 of the Mississippi Code and Article 4, Section 44 of the Mississippi Constitution?

Legal Research and Analysis

The facts presented in your opinion request show that the individual considered for hire as county administrator was convicted of a federal offense of solicitation of a bribe under 18 U.S.C. Section 666(a)(1)(B). This provision is entitled “Theft or bribery concerning programs receiving Federal funds” and it provides:

(a) Whoever, if the circumstance described in subsection (b) of this section exists--

(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof--

(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that--

(i) is valued at $5,000 or more, and

(ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; or

(B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more; or

(2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more;

shall be fined under this title, imprisoned not more than 10 years, or both.

There is no distinction in the criminality of the offense of bribery and solicitation of bribery under the above federal law. One is guilty of the federal offense if an individual either solicits for the benefit of any person or actually accepts value intending to be influenced or rewarded.

The Mississippi Supreme Court held in McLemore v. State , 125 So.2d 86, 89-90 (Miss. 1960), that determining whether a defendant is guilty of the crime of offering or solicitation of a bribe:

The condemned offense is the offer or solicitation to bribe, not completed bribery. There need not be a mutual intent on the part of both the giver and the offeree or accepter of the bribe. 8 Am.Jur., Bribery, Sec. 6. It is the offering of the bribe that constitutes the substantive crime under the statute. It is immaterial whether an attempt or offer to bribe is successful. Nor is any actual tender of the bribe necessary to perfect the offense. The offer to produce a bribe is sufficient.

Miss. Code Ann. Section 25-1-113 provides, in pertinent part:

(2) From and after July 1, 2014, the state and any county, municipality or any other political subdivision shall not employ or continue to employ a person who has been convicted or pled guilty in any court of this state, another state, or in federal court of any felony in which public funds were unlawfully taken, obtained or misappropriated in the abuse or misuse of the person's office or employment or money coming into the person's hands by virtue of the person's office or employment.

It is evident that the intent of the Legislature in enacting Section 25-1-113 was to bar individuals who have demonstrated that they cannot be trusted with public funds and/or would misuse their public employment for personal gain. In our opinion to John W. Hines, dated October 10, 2014, we opined that the statute was intended to apply to situations where "money com[es] into the hands of a person by virtue of his office or employment. This reading would encompass situations where a public officer or employee took money to perform or refrain from performing some official act." We further opined that this statute would include a situation where a public employee/officer accepted a bribe. MS AG Op., Hines (October 10, 2014).

It is our opinion this prohibition would also include a public employee/officer who solicited a bribe but did not receive money simply because the public employee/officer was refused or later caught by law enforcement. The solicitation of a bribe demonstrates that the individual is in the class of criminals that the Legislature is attempting to bar from public employment. It is our opinion that Section 25-1-113 applies to a person seeking employment who has been convicted of or pled guilty to the felony of solicitation of a bribe by a public official. Consequently, it is also the opinion of this office that pursuant to Section 25-1-113, the Sunflower County Board of Supervisors is prohibited from hiring an individual who has previously been convicted of the federal offense of solicitation of a bribe by a public official.

If this office may be of any further assistance to you, please let us know.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Avery Mounger Lee, Special Assistant Attorney General.