This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on June 14, 2002, basing its approval solely on the facts and circumstances stated herein.
 

May the county contract with a deputy sheriff employed by the county to provide security services to the county owned arena and exposition center?

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(c), (d), (f)(i)(ii), (g)(i), (h), (k)(i)(ii)(iii)(iv) and (p)(i)(ii)(iii)  state:
 

“(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.
 
(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.

(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);

(iii) The income as an employee of a relative if neither the public servant or relative is an officer, director or partner in the business and any ownership interest would not be deemed material pursuant to subparagraph (i) or (ii) herein; or

 
(iv) The income of the spouse of a public servant when such spouse is a contractor, subcontractor or vendor with the governmental entity that employs the public servant and the public servant exercises no control, direct or indirect, over the contract between the spouse and such governmental entity.

(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(3)(a) and (4)(d) state:
 

“(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:

 

(d) May be a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which is a contractor, subcontractor or vendor with any  authority of the governmental entity of which he is a member, officer, employee or agent: (i) where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws; or (ii) where the contractual relationship involves the further research, development, testing, promotion or merchandising of an intellectual property created by the public servant.”

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
 

Please be advised that I am employed as a Deputy Sheriff for the County.  In addition, I have recently formed a security company.  It is intended that my security company will provide security services for banks, shopping centers, gas stations, etc.

One of the venues in the County that is in need of security services is the County Arena and Exposition Center.  This facility is owned by the County.  Please advise if there would be a conflict for my security company to provide security services at the County Arena and Exposition Center in light of my being employed by the County.  I would not be acting as a deputy sheriff and would not be paid as an employee.  The County would pay the security company which in turn would pay the employees assigned by my company to the Arena.

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 business in which a public servant has a material financial interest from being a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent.   Code Section 25-4-105(3)(a) would apply to the business of the deputy sheriff since he is an employee of the county.

The county sheriff’s department and county arena and exposition center are both within the general county government as they are subject to the general budgeting and funding authority of the board of supervisors. Therefore, the county sheriff’s department and county arena and exposition center are within the same authority of the county governmental entity for purposes of Code Section 25-4-105(3)(a).

For purposes of this opinion, a “material financial interest” is defined in the above cited Code Section 25-4-103(k)(i)(ii).

 
However, there is an exception to the prohibition set forth in Code Section 25-4-105(3)(a)  when a business with which the public servant has a material financial interest is contracting with an authority of the governmental entity of which he is a member, officer, employee or agent.  The exception is set forth in the above cited Code Section 25-4-105(4)(d).   [Emphasis added]

Code Section 25-4-105(4)(d) would allow the business of the deputy sheriff to be a contractor with the county, if the security services contract is let to his business “where such services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws.”

The exception set forth in the above cited Code Section 25-4-105(4)(d) does not limit a good or service, “reasonably available from two (2) or fewer commercial sources,” to a specific geographical area such as a county or surrounding counties.  Security services within the surrounding counties clearly would be considered as reasonably available commercial sources.

It is the Commission’s opinion that it is very unlikely that security services will meet the exception of “reasonably available from two (2) or fewer commercial sources.”

In summary, Code Section 25-4-105(3)(a) will prohibit the requestor as a deputy sheriff from contracting with the county to perform security services for the county arena and exposition center as the sheriff’s department and county arena and exposition center are considered to be within the same county authority for purposes of the conflict of interest laws.
 
 
 

Scott Rankin
Executive Director