This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on June 26, 1998, basing its approval solely on the facts and circumstances stated herein.

May an employee of a state agency purchase surplus property of his employing state agency at an auction conducted by an auctioneer approved by the Department of Finance and Administration?

Your opinion request to the Office of the Attorney General dated May 22, 1997, was referred by that Office to the Mississippi Ethics Commission on May 27, 1997, as your request involves the above issue that concerns the Mississippi conflict of interest laws.

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 25-4-103 (a), (f)(i)(ii), (g)(v), (h), (n) and (p)(i)(ii)(iii) states:

"(a) 'Authority' means any component unit of a governmental entity.

(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) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.

(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.

(n) 'Property' means all real or personal property.

(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 (3)(b) states:

"(3) No public servant shall:

(b) Be a purchaser, direct or indirect, at any sale made by him in his official capacity or by the governmental entity of which he is an officer or employee, except in respect of the sale of goods or services when provided as public utilities or offered to the general public on a uniform price schedule."

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

The Department respectfully request an official opinion as to public employees bidding and buying at a public auction state surplus property.

The State of Mississippi has contracted with auction houses to hold state surplus sales once a month at the location of the auction house. At this sale all state agencies, including county and municipal agencies, bring property to be disposed of. This surplus auction is open to the public and is advertised by the auction house as such.

If an auctioneer, approved by DFA, is auctioning off surplus property of the state, may a public employee bid at the auction and if high bidder purchase the item bid on if it was the property of the agency whom he was employed with? The high bidder will pay the auctioneer and not make the check payable to the agency. The bill of sale will be issued by a representative from the agency that has control of the property.

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

Code Section 25-4-105 (3)(b), cited above, absolutely prohibits an employee of a state agency from purchasing at an auction surplus property of his or her state agency employer. The prohibition applies even if the state agency employee is the high bidder and the check is made payable to the auctioneer.
 
 
 
 
 
 

Ronald E. Crowe

Executive Director