This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 6, 2001, basing its approval solely on the facts and circumstances stated herein.

May a county engineer be employed by a company that contracts with a wastewater and solid waste management district which the county funds and is a member of when the county engineer represents the county on the wastewater and solid waste management district's technical review committee?

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 courseof 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(c), (e), (f)(i)(ii), (g)(i)(ii)(iii)(iv)(v), (h), (i), (k)(i)(ii) 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.

(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;

(iii) All school districts;

(iv) All courts; 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.

(i) 'Income' means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.

(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).

(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(2) and (3)(a) states:

"(2) No public servant shall be interested, directly or indirectly, during the term for which he shall have been chosen, or within one (1) year after the expiration of such term, in any contract with the state, or any district, county, city or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member.

(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 as follows and considered a part of this opinion.

In addition to the facts set forth in the requestor's attached letter, the Commission's staff was advised that the Wastewater and Solid Waste Management District's Technical Review Committee is an advisory committee established by the Management District to advise its members on technical issues and that the county's engineer, as well as the cities' engineers and/or public works directors, have routinely and historically served on this Committee due to their expertise in technical matters.

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

The requestor's service on the Wastewater and Solid Waste Management District's Technical Review Committee by way of his service as county engineer is sufficient to result in the requestor being a public servant of the Wastewater and Solid Waste Management District as defined in the above cited Code Section 25-4-103(p)(i)(ii).

Code Section 25-4-105(3)(a), cited above, provides that a public servant of a governmental entity may not have a material financial interest in a business that is a contractor with the public servant's governmental entity.

Code Section 25-4-103(k)(ii), cited above, provides that a material financial interest is where a public servant has an ownership interest of less than two percent (2%) in a business and an aggregate annual net income to the public of Five Thousand Dollars ($5,000.00) or more.

Therefore, Code Section 25-4-105(3)(a) will prohibit the requestor from being employed by the company to manage its public works contract with the city if the company remains a contractor with the Wastewater and Solid Waste Management District and if the requestor's compensation from the company results in a material financial interest in the company.

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.

The requestor as county engineer and as a participant on the Wastewater and Solid Waste Management District's Technical Review Committee is expected to have the county and the District's interest as his sole concern in regard to the District's contract with the company. The Commission believes the requestor's employment with the company adversely affects his ability to maintain the public's interest as his sole concern.

Therefore, the requestor's employment with the company will result in an appearance of impropriety and a violation of the public trust which is contrary to the public policy mandate set forth in Code Section 25-4-101.

Also, an action by the county or the District to remove the requestor from the Wastewater and Solid Waste Management District's Technical Review Committee so that he can pursue the private employment interest will result in an appearance of impropriety and a violation of the public trust which is contrary to the public policy mandate set forth in Code Section 25-4-101.

Also, the requestor is advised that his employment with the company could certainly result in a violation of Code Section 25-4-105(2), cited above, if he participated as the county supervisor's designee on the Wastewater and Solid Waste Management District's governing board when the District made the decision to contract with the company.
 

Ronald E. Crowe
Executive Director