This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 1, 2000, basing its approval solely on the facts and circumstances stated herein.

May a local law enforcement officer serve as a noncompensated special contract agent for the Bureau of Narcotics by way of a contract between the local law enforcement officer, the Bureau and the local governmental entity?

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(e), (f)(i)(ii), (g)(i)(ii)(v), (h), (l) and (p)(i)(ii)(iii) states:

"(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;

(ii) Municipalities; and

(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.

(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 in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of 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(1), cited above, prohibits a public servant, including a local law enforcement officer, from using his or her official position to obtain a pecuniary benefit other than that compensation provided for by law.

The noncompensated special contract agent contract clearly requires the contract agent to be a local law enforcement officer covered by a local governmental entity's bond and liability insurance and that his or her badges, weapons, and other equipment be furnished by the local governmental entity employer.

Therefore, the local law enforcement officer's receipt of compensation for his services as a special contract agent from his employing local governmental entity that is over and above his compensation for his regular employment duties would violate Code Section 25-4-105(1).

However, the noncompensated special contract agent contract is very clear that the special contract agent is not to be compensated for his or her special contract agent duties and that his or her contract agent duties are not to interfere with nor substitute for his or her regular employment.

Therefore, a local law enforcement officer will not be in violation of Code Section 25-4-105(1) when serving as a noncompensated special contract agent for the Bureau of Narcotics if the local governmental entity does not compensate him or her for work as a special contract agent.

In other words, the local governmental entity only compensates the local law enforcement officer for his or her regular employment duties for which special contract agent work is not to be substituted as set forth in the noncompensated special contract agent contract.

Code Section 25-4-105(3)(a), cited above, prohibits a public servant, including a local law enforcement officer, from being a contractor with his or her governmental entity.

A contractor is one who agrees to provide services to the governmental entity.

Therefore, a local law enforcement officer may not contract with his or her local governmental entity, such as by way of the noncompensated special contract agent contract, to provide services other than those for which he or she performs in his or her regular employment.

However, a local law enforcement officer would not violate Code Section 25-4-105(3)(a) when he or she is compensated by the local governmental entity only for his or her regular employment duties for which special contract agent work is not to be substituted as set forth in the noncompensated special agent contract.

In other words, there is no violation of Code Section 25-4-105(3)(a) as the noncompensated special contract agent contract clearly provides that the local law enforcement officer will provide noncompensated services to the Bureau of Narcotics and will provide no additional services nor receive any additional compensation from his or her local governmental employer as special contract agent work cannot be substituted for his or her regular local law enforcement employment duties.

This opinion does not address questions of whether any of the terms of the noncompensated special contract agent contract are contrary to state law or statutes such as a local governmental entity contracting to accept liability for the actions of its law enforcement officers when said officers are performing duties outside of their regular employment duties and outside their local governmental entity's jurisdiction for a state agency as private contractors. The issuance of such opinions are within the authority of the State Attorney General. The Commission does note that Section 41-29-112, 1972 Miss. Code Ann. (amended), does require that all special contract agent contracts be "approved as to form by the attorney general".
 
 
 
 

Ronald E. Crowe

Executive Director