Public ethics laws are designed to instill public confidence in the integrity of government and to prevent elected officials from using their offices to unlawfully benefit themselves or their relatives. When a public official breaks those laws, he violates the “public trust,” and the punishment for doing so can be severe. Sheriff Joe Berlin hired his brother-in-law Mark Herrington to the sheriff’s office, which is a clear violation of ethics laws, nepotism laws, and the Mississippi Constitution as detailed below.
(1) The Mississippi Ethics in Government Act
The Mississippi Ethics in Government Act[2] (commonly called the “conflict of interest laws”) strictly prohibits any “public servant” from “us[ing] his official position to obtain, or attempt to obtain, pecuniary benefit for … any relative or any business with which he is associated.”[3] Under the Act, Mark Herrington is a “relative” and his salary is a “pecuniary benefit.”[4] As the Mississippi Ethics Commission has unequivocally stated,
“[W]hen an employee works under the direct supervision of his or her relative, a violation of Section 25-4-105(1) is virtually inevitable.”[5]
Why? Because “[t]he sheriff may be obligated to approve time sheets, pay adjustments or
reimbursement for his [relative], in addition to periodically reviewing his job performance. The sheriff may be responsible for approving his [relative’s] work schedules, raises and could possibly show preference to his [relative] in these day-to-day actions required by his position. Special treatment could also include giving awards. Any of those actions would result in a violation of Section 25-4-105(1). Typically, a public servant can avoid violating Section 25-4-105(1) by recusing himself or herself from the matter in issue. However, recusal under these facts is impractical if not impossible in light of the sheriff’s daily supervisory responsibilities over his employees.[6]
(2) The Mississippi Constitution
Article IV, Section 109 of the Mississippi Constitution states that
“No public servant shall use his official position other than that compensation provided by law, to obtain or attempt to obtain pecuniary benefit for any relative or any business with which he is associated.”
In simplified terms, Sheriff Berlin has a personal interest in his brother-in-law’s well being; so his wife’s brother’s contract with the county is also a constitutional violation.
To constitute a violation of Section 109, the “contract” doesn’t have to be a formal written agreement, but is defined as “[a]ny agreement to which the government is a party; or [a]ny agreement on behalf of the government which involves the payment of public funds.”[7] The “government” includes Jones County, and Sheriff Joe Berlin is a “public servant.”[8]
(3) Mississippi’s “Nepotism Statute.”
MS Code 25-1-53 clearly states,
“It shall be unlawful for any person elected, appointed or selected in any manner whatsoever to any state, county, district or municipal office, or for any board of trustees of any state institution, to appoint or employ, as an officer, clerk, stenographer, deputy or assistant who is to be paid out of the public funds, any person related by blood or marriage within the third degree [emphasis added], computed by the rule of the civil law, to the person or any member of the board of trustees having the authority to make such appointment or contract such employment as employer. This section shall not apply to any employee who shall have been in said department or institution prior to the time his or her kinsman, within the third degree, became the head of said department or institution or member of said board of trustees;”
Herrington was not employed under the previous sheriff. So, his employment is not grandfathered and is a clear violation of MS Code 25-1-53, and he is well within a “third degree relative” by marriage as stated in Mississippi statute.
(4) The Board of Supervisors Issue
With any county employee, the board of supervisors must approve the hiring. The governing body’s members could be subject to a demand by the Mississippi State Auditor’s office, since Herrington’s hiring would be unlawful. Since the hiring would be a violation of statute and a misappropriation of government resources, a demand of such a nature would almost certainly not be covered under their bonds, and therefore, would be a personal demand.
A demand to any members of the board who voted to approve Herrington’s hire could include total wages/salaries paid to Herrington for the duration of his unlawful employment. For example, if Herrington was paid $50,000 annually and worked for 2 years, a $100,000 demand could be issued, and could apply equally to the board members who voted to hire Herrington. Any member who abstained or voted, “nay” would not be subject to a demand.
(5) Possible Punishment.
Any “contract” made in violation of the Ethics in Government Act may be declared null and void by a court of competent jurisdiction,[9] and the offending public servant (such as Berlin) is additionally subject to: (a) civil fines up to $10,000; (b) censure or removal from of elected public official from office, and/or for unelected public official (such as Herrington), censure, removal from office, suspension, reduction of pay or demotion by a circuit court of competent jurisdiction;[10] and (c) by separate civil action by the Attorney General or any governmental entity, damages, forfeiture of any pecuniary interest received by the violator, and in the discretion of the court, court costs and reasonable attorneys’ fees.[11]
(6) The Mississippi Supreme Courts Precedent
The Mississippi Supreme Court’s opinion in Hinds Community College Dist. v. Muse, 725 So. 2d 207 (Miss. 1998), indicates just how severely violations of the Ethics in Government Act are punished. There, the wife of the president of Hinds County Community College was employed as a teacher for 13 years, during which time she was paid a total of $311,709. The Attorney General charged the president of violating Section 25-4-105, and sought disgorgement of the entire amount his wife had been paid.
The Muses claimed that they had acted in good faith, and that since Mrs. Muse had provided quality services for the salary she had received, the State had suffered no damages. The Supreme Court rejected the Muses’ arguments, and held that good faith, long practice, and value received are not defenses to violations of the Ethics in Government Act. Rather, the State did not have to show monetary damages to prevail under the Act. The injury is the damage that self-dealing does to the public trust, and this injury occurs even where the government has received full value for any money spent.
“The legislative directive focuses on the wrongful gain to the violative public servant as a measure of damages to the public trust. The injury is the loss of public trust; the damages are the benefits wrongfully gained.”[12]
The Muse opinion tells us that it is simply irrelevant in this case whether Jones County suffered financial loss from the employment of Herrington or whether the services he has provided benefited Jones County. Neither good faith, long practice, or value received are defenses to violations of the Ethics in Government Act. Sheriff Berlin’s brother-in-law Mark Herrington, just like in the Muse case, would likely have to repay all of his compensation since the day he was hired. Furthermore, either he and/or Sheriff Berlin will have to resign.
(7) Procedure.
The Ethics in Government Act allows any citizen to file a complaint with the Mississippi Ethics Commission.[13] If probable cause exists “for [the] belief that a violation of law has occurred,” the Commission must refer the complaint and any evidence obtained during its investigation to the Mississippi Attorney General and the district attorney having jurisdiction.[14] The Commission must also submit “a recommendation that [the alleged violation] be considered for presentation to the grand jury, as well as any further recommendations for seeking civil remedies.”[15] The Commission, Attorney General, or any governmental entity that has been harmed may file a complaint in the circuit court of the county in which the violation occurred.[16]
(8) Conclusion
Conflicts of interest by elected officials are so repugnant to our democratic system of government that the legislature has called efforts to “realize personal gain through official conduct” to be a violation of “public trust.”[21] And the Mississippi Supreme Court has called nepotism and self-dealing by public officials “two of the more pernicious threats to our democratic ideals.”[22]
Citizens have the right to demand that our public officials carry out their duties in an ethical manner.[23] Ensuring that they do so, and holding them accountable if they don’t, is the Hattiesburg Patriots’ primary reason for existence – its raison d’être, its mission. This site will continue to fulfill its mission, especially when our elected officials appear to have violated laws as fundamental as this.
The below document Ethics Opinions
ethics-opinionsThe below document 25-1-53-Employment of relatives prohibited; exceptions
HP-25-1-53-Employment-of-relatives-prohibited-exceptionsThe below document 25-4-101 Legislative Declaration
HP-25-4-101-Legislative-declaration