OFFICIAL ADVISORY OPINION NO. 01-113-E
November 2, 2001
This Advisory
Opinion concerns the following issue as formulated from facts and/or circumstances
furnished by a requestor. The Commission approved this opinion on November
2, 2001, basing its approval solely on the facts and circumstances stated
herein.
May
a police officer who has received training in accident reconstruction at
the expense of the city use his training in accident reconstruction to
teach classes for which he will be paid personally by the participants
attending the classes?
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(b),
(c), (d), (e), (f)(i)(ii), (g)(ii), (h), (k)(i)(ii), (l) and (p)(i)(ii)(iii)
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.
(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:
(ii)
Municipalities.
(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.
(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.”
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.
May
a Municipal Police Officer who has received training in a specific skill,
which was paid for by the Municipality, earn personal income using that
skill in his/her own business on his/her own time?
In addition
to the above facts the requestor provided the following additional facts
to the Commission’s staff.The police
officer in question has attended approximately 7 courses of study on accident
reconstruction for which the city paid between $5,000.00 to $6,000.00 for
the costs associated with the police officer attending the courses.Most
of the courses have been taught at a college or a community college, both
instate and out-of-state institutions.However,
at least one of the courses was taught at a law enforcement academy which
required the participants to be law enforcement officers with public law
enforcement entities. The officer in question and another person want to
set-up and teach their own course on accident reconstruction and charge
a fee to those attending.Their course
would not provide any particular certification to the participants but
would be expected to benefit the participants when and if they pursue national
certification by taking that required test.
The
Commission formally adopts Advisory Opinion No. 01-028-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(1),
cited above, prohibits a public servant from using his official position
to obtain a pecuniary benefit for himself or a business with which he is
associated.
Code
Section
25-4-103(c),
cited above, defines a business as 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.
Regardless
of how the police officer and his partner set-up the training classes,
their training class enterprise would result in a business with which the
police officer is associated as defined in the above cited Code Section
25-4-103(d).
Therefore,
the police officer and/or he and his partner’s training class enterprise
may not benefit from payments from participants in the classes if the police
officer uses his official position with the city as a police officer to
set-up, conduct and/or teach the classes as to do so would violate Code
Section
25-4-105(1).
Notwithstanding
the above, the attached advisory opinion sets forth the following position:
[I]t
is not a violation of Code Section
25-4-105(1)
when a public servant uses for pecuniary gain the general knowledge in
a particular field that he is required to have in order to hold his public
employment position. It is a violation when a public servant uses specific
knowledge that is available to him only because of his public employment
to obtain a pecuniary benefit. Also, it is a violation when a public servant
uses his public employer’s equipment, facilities or other resources to
obtain a pecuniary benefit.
The
unique circumstance of this case makes this a question of first impression
for this Commission. The uniqueness arises in that the public servant in
this instance obtained his general knowledge in a particular field that
he is required to have in order to hold [or perform] his public employment
position [or duties] at the cost of his public employer.
Clearly,
the police officer obtained his training in accident reconstruction at
the expense of the city because he is a public servant of the city.
However,
there is no evidence that the police officer used his official position
as a public servant of the city to obtain the training. His use of his
official position is a necessary element to violate Code Section
25-4-105(1).
There are no mandates in state law requiring a police officer to obtain
advanced training in accident reconstruction.
In
fact, a decision as to whether a police officer will receive advanced training
in accident reconstruction at the cost of the police officer’s public employer
is solely within the purview and authority of the public employer’s governing
body or its executive or administrative designee.
[1]
Based solely on the specific facts presented herein, Code Section
25-4-105(1)
will not prevent the police officer and his partner from setting-up and
teaching an accident reconstruction course and charging a fee from the
participants for attending the course.
This
is true even though the police officer in question obtained his training
in accident reconstruction at the expense of his city employer as there
is no evidence that the police officer used his position to obtain the
training for the reasons stated above.
The
requestor is cautioned to advise the police officer that he will be in
violation of Code Section
25-4-105(1)
should he use the city’s equipment, facilities or other resources to conduct
the training classes.
Specifically,
the police officer may not use training materials and resources in the
training classes held by him and his partner that were paid for by the
city or which he acquired in the training classes he attended that were
paid for by the city.
Code
Section
25-4-105(3)(a),
cited above, prohibits a public servant from being a contractor, subcontractor
or vendor with the governmental entity employing him or from having a material
financial interest in a business that is a contractor, subcontractor or
vendor with the governmental entity employing him.
Therefore,
Code Section
25-4-105(3)(a)
will prohibit public servants of the city, such as other city police officers,
from attending the training classes conducted by the police officer and
his partner if the costs of attending the classes are directly or indirectly
paid for by the city.
Scott Rankin
Executive Director
[1]
Community college president’s recommendation of wife for teaching position
at college and signing of teaching contract with her on behalf of college
violated Ethics in Government Act’s prohibition of use of public office
for pecuniary benefit of self or relative. Code 1972, §
25-4-105(1).
Hinds Community College and the Mississippi Ethics Commission, by and
through Mississippi Attorney General Mike Moore v. Muse, 725 So. 2d
207 (Miss. 1998).