This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 4, 2000, basing its approval solely on the facts and circumstances stated herein.

May a district attorney require the district attorney's office to pay for the utilities and/or the ad valorem taxes on the district attorney's private law office which the district attorney desires to use as a regional district attorney's office?

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 25-4-101 states:

"The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the state and local governments."

Code Section 25-4-103(f)(i)(ii), (g)(v), (h), (l), (n), (o) and (p)(i)(ii)(iii) states:

"(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.

(l) '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.

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

(o) 'Public funds' means money belonging to the government.

(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(1) and (3)(a) 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.

(3) 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, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent."

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

As you know, I am the elected District Attorney for my Circuit Court District and, as per our phone conversation yesterday, I request an ethical opinion on the following questions:

1. May I donate for the use by the district attorney's office my office in my hometown, including my furniture and my office equipment? I would require that the utilities be changed over into the district attorney's office and that it pay the utilities from its bad check unit funds.

2. The other question is whether or not I can also require the district attorney's office to pay the taxes on the building?

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

Code Section 25-4-105(3)(a), cited above, prohibits a public servant, including a district attorney, from being a contractor, subcontractor or vendor with his governmental entity.

Code Section 25-4-103(f)(i)(ii), cited above, defines a contract for purposes of the state conflict of interest laws. Specifically, a contract is any agreement to which the government is a party or any agreement on behalf of the government which involves the payment of public funds.

Clearly, the requestor is proposing an agreement with his own authority of the state, i. e., the district attorney's office, whereby he will allow his personal law office to be used for district attorney's duties if the district attorney's office will agree to make payments of public funds, i. e., the bad check unit funds, to cover the costs of the utilities and/or the ad valorem taxes.

The circumstance described by the requestor is self-evident of a contract relationship that results in a contractor relationship as anticipated by Code Section 25-4-105(3)(a).

Therefore, Code Section 25-4-105(3)(a) will prohibit a district attorney from agreeing to allow his personal law office to be used for district attorney office duties when the district attorney's office will be paying the utilities and/or the ad valorem taxes of the office for as long as it is used as a district attorney's office.

Notwithstanding the above, the requestor is also advised to remain keenly aware of Code Section 25-4-105(1) and Code Section 25-4-101, both cited above.

Code Section 25-4-105(1) prohibits a public servant, including a district attorney, from using his official position to obtain a pecuniary benefit for himself.

A district attorney's decision to use his own personal law office for district attorney office duties and to then pay the ad valorem taxes on his office with bad check unit funds is a violation of Code Section 25-4-105(1).

The issue presented by the requestor also must be viewed as it relates to Code Section 25-4-101, set forth above. This code section sets the tone for the conflict of interest laws as the Legislature's "Declaration of Public Policy." This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.
 
 
 
 
 
 
 
 
 
 

Clearly, a district attorney using his own personal law office for district attorney office duties and paying the utilities and/or ad valorem taxes of the office out of the district attorney's bad check unit funds is a circumstance that has the potential of creating suspicion among the public and reflecting unfavorably upon the district attorney's office. Therefore, such a circumstance should be avoided in order to fully comply with the public policy mandate set forth in Code Section 25-4-101.
 
 
 
 
 
 
 
 

Ronald E. Crowe

Executive Director