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 7, 2001, basing its approval solely on the facts and circumstances stated herein.

May a trooper donate or lend a trained law enforcement dog to the Department subject to a provision that the trooper will have the first option to obtain the dog back once it is no longer needed by the Department?

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.

Code Section 25-4-103(b), (d), (e), (f)(i)(ii), (g)(v), (h), (l), (p)(i)(ii)(ii) and (q) states:
 

"(b) "Benefit" means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.

(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.

(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)(b) 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.

(b) Be a purchaser, direct or indirect, at any sale made by him in his official capacity or by the governmental entity of which he is an officer or employee, except in respect of the sale of goods or services when provided as public utilities or offered to the general public on a uniform price schedule."

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 writing on behalf of the Department and respectfully request an Ethics Opinion on the following issue.

The Department proposes that troopers buy their own dogs and the necessary training for the dogs to be certified for use by the K-9 Unit. The trooper would then donate the dog to the Department and the Department would provide food, veterinary bills, additional training, and any other necessities while the dog was in active service by the K-9 Unit. The issue is whether or not a trooper can donate or lend the dog to the Department subject to a provision that the trooper will have the first option to obtain the dog back once it is no longer needed by the Department.

The Department received an Attorney General's Opinion on this subject, which I have enclosed for your review. However, it has been suggested that we obtain an Ethics Commission Opinion regarding the conflict of interest statutes.

Therefore, please advise if the above scenario would violate any conflict of interests statutes.

In addition to the above facts, the referenced Attorney General's opinion, in pertinent part, states: "It is the opinion of this office that troopers may either donate or loan their canines to the [Department]. However, the dogs may only be returned to the trooper if there is a written agreement between the trooper and the Department setting out the conditions under which the dog will be returned. We suggest you also consult the Ethics Commission for a determination of whether any of the state's conflict of interest statutes may be violated by the proposed agreement."

The Commission formally adopts Advisory Opinion No. 90-050-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 from being a contractor with the public servant's governmental entity.

In Attorney General Mike Moore, ex rel., et al. v. Byars, 757 So.2d 243 (Miss. 2000), the Mississippi Supreme Court ruled that an individual's contract with a city in the form of a loan of money from the city to the individual did not result in the individual being a contractor with the city as that term is meant in Code Section 25-4-105(3)(a).

Notwithstanding the above, the Mississippi Supreme Court also ruled in Byars that the term contractor is generally used in the strict sense of one who contracts to perform a service for another [for a price].

Therefore, a "loan" agreement between a public servant and his governmental entity would violate Code Section 25-4-105(3)(a) if the so called "loan" agreement was in actuality a contract whereby the public servant was agreeing to provide a service to the governmental entity for a price.

As an example, the attached Advisory Opinion No. 90-050-E said that a county medical examiner investigator's contract to lease his vehicle to the county to transport bodies for compensation from the county would result in a violation of Code Section 25-4-105(3)(a).

Even under the Byars' ruling, it is this Commission's opinion that the finding in the attached Advisory Opinion No. 90-050-E is correct as the leasing of the vehicle was in actuality a contract for the county medical examiner investigator to provide a service to the county for a price. The service provided by the county medical examiner investigator to the county being the transporting of bodies and the price being compensation paid by the county to the county medical examiner investigator in the form of transportation fees.

Based on the above, the Commission's opinion is that a trooper entering into a temporary "loan" agreement with the Department to provide it a trained and certified law enforcement dog in return for compensation from the Department is in actuality a contract to provide a service to the Department for a price thereby making the trooper a contractor with the Department in violation of Code Section 25-4-105(3)(a).

The term compensation, as used above, is defined in the above cited Code Section 25-4-103(e) as money or thing of value received, or to be received, from any person for services rendered.

The question of whether a dog returned to a trooper by the Department after its release from active service by the K-9 Unit by way of a "loan" agreement would be a "thing of value to be received" by the trooper would depend on the facts and circumstances pertaining to each individual instance. In other words, would the dog have a monetary value or be a thing of value in that the return of the dog provided the trooper some opportunity or prospect for economic gain.

The Department's providing of necessities and training for the dog by way of a "loan" agreement while the dog is in active service with the K-9 Unit will not result in a "thing of value received" by the trooper if the "loan" agreement prohibits the trooper from using the dog to obtain any personal compensation or other pecuniary benefit while the dog is in active service with the K-9 Unit.

The trooper's use of the dog for any personal purpose, or to obtain a pecuniary benefit for himself, a relative or a business with which he is associated, while the dog is in active service with the K-9 Unit will not only result in the trooper being in violation of Code Section 25-4-105(3)(a) but the trooper will also be in violation of Code Section 25-4-105(1), cited above.

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

The state conflict of interest laws would not prohibit a trooper from donating personal property to the Department, including a trained and certified law enforcement dog.

However, a transfer of personal property is a donation only when it is a gift. Therefore, the trooper must voluntarily transfer the title and possession of the dog to the Department without any consideration, compensation or other benefit accruing to the trooper. ⁽¹⁾

Code Section 25-4-105(3)(b), cited above, prohibits a public servant of a governmental entity from being a purchaser, direct or indirect, at a sale made by the governmental entity of which the public servant is an officer or employee.

Therefore once a trooper donates personal property, such as a dog, to the Department, it becomes the Department's property and Code Section 25-4-105(3)(b) prohibits the trooper from later being a purchaser, direct or indirect, of the Department's personal property at a sale by or on the behalf of the Department.

Ronald E. Crowe

Executive Director

1. Black's Law Dictionary, 5^th Ed., defines the term "gift" as "A voluntary transfer of property to another made gratuitously and without consideration."