This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on August 3, 2001, basing its approval solely on the facts and circumstances stated herein.

May a State Department advertise to offset the production costs of printing its license manuals and license renewal notices?

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 course of 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), (d), (e), (f)(i)(ii), (g)(v), (h), (i), (k)(i)(ii), (l), (p)(i)(ii)(iii) and (q) 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.

(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:

(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).

(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.

(q) "Relative" means the spouse, child or parent."

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.

The Department is looking into the possibility of advertising to offset the production costs of printing license manuals and mailing renewal notices. I did not find a state statute which allows or disallows such advertising in state publications. The only statute in the same area is Miss. Code Ann. § 37-43-53 which allows advertising on school textbook covers to cover the cost. Please advise if you are aware of any state statutes or ethics rules which would not allow the Department to advertise in these publications.

In addition to the above facts, the requestor advised the Commission's staff that the Department is considering accepting advertisements from nonprofit groups that support safety issues related to license holders and for-profit training schools certifying individuals to receive certain types of licenses issued by the Department.

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

As the Commission's staff advised the requestor by telephone, the Commission's authority to interpret and issue opinions is restricted to issues related to the state conflict of interest laws.

Therefore, the requestor is advised to seek an official opinion from the State Attorney General regarding whether the Department has statutory authority to accept advertisements for placement in its state publications and to generate funds from such a program.

Regarding nonprofit groups supporting and promoting issues that relate to the safety of license holders, it is the Commission's opinion that the Department's accepting advertising from such nonprofit groups for placement in its state publications would not as such be prohibited by the state conflict of interest laws.

Notwithstanding the Commission's position on the Department accepting advertising from such nonprofit groups, the issue of the Department accepting advertisements for placement in its state publications from for-profit training schools raises serious public policy concerns.

Code Section 25-4-101, set forth above, 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.

It is the Commission's opinion that the Department's acceptance of advertising for placement in its state publications from for-profit training schools that certify that individuals are qualified to hold certain licenses issued by the Department is a circumstance that has the potential of creating suspicion among the public and reflecting unfavorably upon the Department.

Therefore, the Department should not accept advertising for placement in its state publications from such for-profit training schools in order to fully and completely comply with the public policy mandate set forth in Code Section 25-4-101.

The requestor is also advised to remain keenly aware of Code Section 25-4-105(1) and (3)(a), cited above.

Code Section 25-4-105(1) prohibits a public servant, such as a Department employee, from using his official position to obtain a pecuniary benefit for himself, a relative or a business with which he is associated.

Code Section 25-4-105(3)(a) prohibits a public servant, such as a Department employee, from being a contractor, subcontractor or vendor with his governmental entity or from having a material financial interest in any business that is a contractor, subcontractor or vendor with his governmental entity.

"Business" and "business with which he is associated" are defined in the above cited Code Section 25-4-103(c) and (d). The requestor is cautioned to note that the definition of business does include a nonprofit organization receiving public funds. Also, the requestor is cautioned to note that a public servant is associated with a business not only by the public servant's individual involvement, income or interest but by the public servant's relative's involvement, income or interest.

"Relative" is defined in the above cited Code Section 25-4-103(q) as a spouse, child or parent.

"Material financial interest" is defined in the above cited Code Section 25-4-103(k)(ii)(ii). The requestor is cautioned to note that a public servant can have a material financial interest in a business without having an ownership interest if the public servant has an aggregate annual net income therefrom of Five Thousand Dollars ($5,000.00) or more.

"Pecuniary benefit" is defined in the above cited Code Section 25-4-103(l) as benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain.

Therefore, should the Attorney General opinion that the Department has authority to accept advertisements for placement in its state publications, the Department should not do so with its employees, its employees' relatives or with businesses with which its employees are associated or in which its employees have a material financial interest.

Ronald E. Crowe

Executive Director