This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on April 7, 2000, basing its approval solely on the facts and circumstances stated herein.

May a public school teacher be involved in a school supply business that proposes to do retail and mail order business with public school districts including the school district that employs the public school teacher?

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(c), (d), (f)(i)(ii), (g)(iii), (h), (k)(i)(ii), (l) and (p)(i)(ii)(iii) states:

"(c) 'Business' means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a nonprofit corporation or other such entity, association or organization receiving public funds.

(d) 'Business with which he is associated' means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.

(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:

(iii) All school districts.

(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.

(k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).

(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.

(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.

I represent a school teacher who desires to be involved in a school supply business that proposes to do retail, as well as, mail order business.

The school district by whom the teacher is employed has a published policy and/or the Mississippi State Department of Education has a published policy which reads in part as follows:

"While under contract school employees shall not engage in any part-time employment by others which interferes with the employment duties assigned to them by the School District. School Administrators shall not engage in any part-time services for compensation by others without prior approval of the Board."

"No school employee shall act as an agent for school supplies, sell same, either on salary or commission nor engage in any part-time employment which creates or may create a conflict of interest."

My client has no problem with the above first paragraph. However, the second paragraph seems to prohibit my client from being involved in the school supply business.

I am advised that some school districts interpret the provision, such as the second paragraph, as having application to the school district wherein the school employee is employed, but such a policy provision does not apply to school districts other than the one where the employee is employed. In other words, some school districts apply the policy restrictions to only that district, but the employee can sell school supplies outside or in other school districts.

I am sure you have been call on, numerous times, to render opinions on such a policy as the above set forth in the second paragraph. Therefore, I should appreciate a copy of such opinions.

In the event no opinion has been rendered, I should appreciate one being rendered.

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

The Ethics in Government laws, Sections 25-4-101, et seq., 1972 Mississippi Code Annotated, do not as such prohibit a public school teacher from being involved in a school supply business that does retail and mail order business with public school districts other than the school district that employs the public school teacher.

However, Code Section 25-4-105(3)(a), cited above, does prohibit a public school employee, including a public school teacher, from having a material financial interest in any business, including a school supply business, that is a contractor, subcontractor or vendor with his or her employing school district.

A material financial interest is defined in the above cited Code Section 25-4-103(k)(i)(ii).

Notwithstanding the above, the requestor is cautioned to advised the public school teacher to remain keenly aware of the above cited Code Section 25-4-105(1).

Code Section 25-4-105(1) prohibits a public servant, including a public school teacher, from using his or her official position to obtain a pecuniary benefit for himself or herself or a business with which he or she is associated.

The school supply business would meet the definition set forth in Code Section 25-4-103(d), cited above, of a "business in which he is associated" should the public school teacher become "an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control."

Although the Commission does not normally address state laws outside of Constitutional Section 109 and Code Sections 25-4-101, et seq., it would be remiss if it did not point out Section 210 of the Mississippi Constitution of 1890, and Section 37-11-25, 1972 Mississippi Code Annotated.

Constitutional Section 210 prohibits teachers, as well as certain state and local public officers, from being "interested in the sale, proceeds, or profits of any books, apparatus, or furniture to be used in any public school in this state."

Code Section 37-11-25 provides that if any teacher, as well as certain state and local public school officials and employees, in the public schools "shall be interested, either directly or indirectly, in the proceeds or profits of the sale or rental of any book, furniture, equipment or other property to be used in any public schools of this state such person shall be guilty of a misdemeanor and, upon conviction, he shall be fined not less than two hundred dollars ($200.00) nor more than five hundred dollars ($500.00)."

The requestor is cautioned to seek an official opinion from the State Attorney General regarding the restrictions set forth in Constitutional Section 210 and Code Section 37-11-25 before advising the public school teacher in regard to becoming involved with the school supply business.

The Commission's advisory opinion is solely for the purpose of interpreting the Ethics in Government laws and does not alter, limit or restrict in any way the published policy of the Mississippi State Department of Education and/or the published policy of any local public school district.

Ronald E. Crowe

Executive Director