This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances fumished by a requestor. The Commission approved this opinion on March 1, 2002, basing its approval solely on the facts and circumstances stated herein.

May a state trooper also be employed part-time as a county civil defense director and participate in the Public Employee Retirement System (PERS)?

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(f)(i)(ii), (g)(i)(v), (h) and (p)(ii)(iii) states:

"(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; 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.

(p) "Public servant" means:

(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), (3)(a) and (4)(h) 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.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee."
 

The state agency respectfully requests an ethics opinion on whether or not a state trooper can be employed part time as a County Civil Defense Director with the Board of Supervisors and participate in PERS as a county employee.

It is not such a violation of the state conflict of interest laws for a state trooper to be employed as a county civil defense director.

The state conflict of interest laws do not as such prohibit a public servant, including a state trooper, from being employed by two totally separate governments, in this instance, the state and a county. The state trooper is currently an employee of the state of Mississippi seeking employment with a county authority, therefore, two separate govemmental entities are involved.

Notwithstanding the above, the requestor as a state trooper must remain keenly aware of the above cited Code Section 25-4-105(1) and Code Section 25-4-101.

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

However, it 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 issue presented by the requestor 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.

Clearly, a state trooper contracting with divisions of a county government that the state trooper is directly or indirectly involved with through his state employment has the potential of creating suspicion among the public and reflecting unfavorably upon his state employer.

Therefore, a state trooper should avoid contracting with any division of a county government that he is directly or indirectly involved with through his state employment in order to fully comply with the public policy mandate set forth in Code Section 25-4-101.

As for the state trooper's participation in the PERS system as the county civil defense director, PERS should be directly consulted to determine the state trooper's eligibility.

Scott Rankin

Executive Director