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 deputy circuit clerk enter into a contractual relationship with the board of supervisors to update the county law library?
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), (e), (f)(i)(ii), (g)(i), (h) and (p)(i)(ii)(iii) states:
"(a) 'Authority' means any component unit of a governmental entity.
(e) 'Compensation' mean money or thing of value received, or to be received, from any person for services rendered.
(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:
(i) Counties.
(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.
(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)(a) and (4)(d) states:
"(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.
(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:
(d) May be a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which is a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent: (i) where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws; or (ii) where the contractual relationship involves the further research, development, testing, promotion or merchandising of an intellectual property created by the public servant."
Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
As the Administrator for the County, I have been requested to obtain an ethics opinion from the Commission regarding extra employment of a deputy circuit clerk.
The deputy clerk is paid for services from the Circuit Clerk's budget as approved by the Board of Supervisors. The County Law Library is funded with fees collected from costs of court and these funds are in a separate budget item. It is necessary, from time to time, for some person to update the library with new supplements as well as books and computer discs. Obviously, the duties of a deputy clerk and law librarian are different.
Is there any legal impairment for the County to enter into a contractual relationship with a Deputy Circuit Clerk for librarian services to be performed after hours or on the weekend with payment for services from the library budget?
The Commission formally adopts Advisory Opinion No. 96-023-E in response to this request and by attachment incorporates it into this opinion.
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 of a county, including a deputy circuit clerk, from being a contractor, subcontractor or vendor with the county governmental entity.
Code Section 25-4-105(f)(ii), cited above, provides that any agreement on behalf of the government which involves the payment of public funds is a contract with the government.
It is the Commission's understanding that the deputy circuit clerks' duties involving the county law library are not duties that would be considered the statutory duties of a deputy circuit clerk.
Also, the circuit clerk's office and the county law library are both within the general county government as they are subject to the general budgeting and funding authority of the board of supervisors. Therefore, the circuit clerk's office and the county law library are within the same authority of the county governmental entity for purposes of Code Section 25-4-105(3)(a).
Therefore, the deputy circuit clerk's contractual relationship with the board of supervisors to perform county law library updates would result in the deputy circuit clerk being a contractor with the authority of the governmental entity in which the deputy circuit clerk is a public servant in violation of Code Section 25-4-105(3)(a).
The only applicable exception to a violation of Code Section 25-4-105(3)(a) in this instance is found in the above cited Code Section 25-4-105(4)(d). This exception is where the goods or services being provided by the public servant are reasonably available from two (2) or fewer commercial sources.
It is the Commission's finding that the exception set forth in Code Section 25-4-105(4)(d) is not applicable in this instance as services to update the county law library are certainly reasonably available from more than two services.(1)
Also, it is the Commission's opinion that the geographical boundary of a local governmental entity, such as a county, is not sufficient by itself to set in motion the above exception.
Code Section 25-4-105(3)(a) also would prohibit the county board of supervisors from employing the deputy circuit clerk as the law librarian as authorized in Code Section 19-7-31.
As stated in the attached advisory opinion, "The interpretation of Code Section 25-4-105(3)(a) is that a public servant may hold only one position with the authority of the governmental entity of which he or she is a member, officer, employee or agent."
Ronald E. Crowe
Executive Director
1. §19-7-31. Law libraries, establishment and maintenance. " . . . the said board of supervisors may, in its discretion, expend such sums as may be deemed necessary or proper for such purpose, and may also employ a suitable person as librarian and pay said law librarian such salary as the board, in its discretion, may determine. The board may employ additional librarians or other employees on either a part-time or full-time basis and may pay these additional employees as the board, in its discretion, may determine. The board of supervisors, in their discretion, may contract with the county or municipal library for any staff or facilities as they deem necessary for the overall management and operation of the county law library." . . . "To accomplish the purposes of this section, the board of supervisors is hereby further authorized and empowered to enter into such arrangement or arrangements with the county bar association of any such county as may seem advisable for the care and operation of said law library and said board may receive and consider, from time to time, such recommendations as the bar association may deem appropriate in the premises. "