This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on January 5, 2001, basing its approval solely on the facts and circumstances stated herein.

May an employee of a school district qualified as a notary public charge a fee for notary services provided to the school district when the school district does not pay the expenses necessary to qualify the employee as a notary public nor does the school district require the employee to be a notary public?

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)(iii), (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:

(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.

(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 am requesting an official opinion on the following:

May an employee of a School District, who is a Notary Public, charge a fee for services provided to the school district. The School District does not pay for the Notary fee nor does the District require the employee to be a notary.

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

The following opinion is written with the understanding that the school district employee qualified as a notary public paid his or her own expenses necessary to qualify as a notary public and that the expenses were not repaid or reimbursed, either directly or indirectly, by the school district. [Emphasis added to bold text]

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

The question in this instance is whether the school district employee qualified as a notary public may perform notary public duties for the school district without violating Code Section 25-4-105(3)(a).

Section 25-33-1, 1972 Mississippi Code Annotated (amended), in part, states, "The Governor may appoint notaries public who may serve in any or all counties of the state. A notary public shall hold office for a term of four (4) years. Notaries public who are appointed and commissioned after July 1, 1988, shall give bond, with sufficient sureties, in the penalty of Five Thousand Dollars ($5,000.00). All such bonds shall be conditioned and approved as bonds of state officers are required to be, except that notaries public shall not otherwise be considered state officers. Each notary public shall take the oath of office prescribed by Section 268 of the Constitution. A notary public shall qualify by filing the oath and bond in the office of the Secretary of State."

Section 25-7-29, 1972 Mississippi Code Annotated (amended), clearly sets forth the fee limits a notary public may charge for certain prescribed duties.

After consideration of the above set forth laws concerning notaries public, it is the Commission's opinion that a public servant, including a school district employee, may perform statutorily prescribed notary public duties and be paid the statutorily allowed fee for such notary public duties rendered to the public servant's employing governmental entity, in this instance a school district, without violating Code Section 25-4-105(3)(a). In other words, a notary public performing a statutorily prescribed duty for a statutorily allowed fee is functioning as a public officer rather than functioning as a contractor performing a service by way of a contract for a negotiated amount of payment.

Notwithstanding the above, the requestor is cautioned to advise the school district employee qualified as a notary public to remain keenly aware of the prohibition imposed by the above cited Code Section 25-4-105(1).

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

Therefore, Code Section 25-4-105(1) will prohibit the school district employee qualified as a notary public from unilaterally or independently performing notary public duties for the school district or from requesting to perform notary public duties for the school district. The school district employee may perform notary public duties for the school district only when asked to do so by a superior.
 
 
 
 
 
 

Ronald E. Crowe

Executive Director