This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 6, 2002, basing its approval solely on the facts and circumstances stated herein.
 

ISSUE 1:  May a department of a state agency participate in a public auction of another state agency?

ISSUE 2:  May an employee of any state agency purchase items at an auction held by a state agency other than the state agency which employs the individual?

ISSUE 3:  May an employee of a specific state agency purchase items at an auction held by that specific state agency?

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

“(a) ‘Authority’ means any component unit of a governmental entity.

(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.

(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)(b) states:
 

(3) No public servant shall:
 

(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.
 

The Mississippi Office of Surplus Property holds auctions to the general public for sale of state surplus property.  These auctions are conducted by a contract auctioneer with surplus property employees providing employees to act as cashier, load property for bidders, invoice sales to bidders, etc.  The auctions are advertised thru the DFA website, local Mississippi papers, radio and television stations as a public auction.

A department of a state agency participated in our last public auction and we would like to know if this is a violation of the conflict of interest clause?  Would other state employees be allowed to participate in our public sales?  Are surplus property employees allowed to participate in our public sales?

The Commission formally adopts Advisory Opinion No.99-109-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)(b), cited above, absolutely prohibits a public servant from being a purchaser, direct or indirect, at any sale made by the governmental entity of which he is an officer or employee.  The only exceptions to this prohibition is the sale of goods or services when provided as public utilities or offered to the general public on a uniform price schedule.

As set forth in the attached advisory opinions, the prohibition imposed by Code Section 25-4-105(3)(b) includes any advertised sale of surplus property, including those held by way of an auction.

ISSUE 1: While Code Section 25-4-105(3)(b) 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, the conflict of interest laws do not address a department of a state agency purchasing from another state agency at a public action.

Therefore, the conflict of interest laws would not prohibit a department of a state agency from participating in a public auction of another state agency.
 

ISSUE 2:  Code Section 25-4-103(h), cited above, clearly defines “governmental entity” as the state, county, municipality or any other separate political subdivision authorized by law to exercise a part of the sovereign power of the state. [Emphasis added to bold text]

Code Section 25-4-103(a), cited above, defines “authority” as any component unit of a governmental entity.  [Emphasis added to bold text]

Certainly, a state agency is a component unit of the state.

As stated above, Code Section 25-4-105(3)(b) clearly prohibits a public servant from being a purchaser at any sale made by the governmental entity of which he is an officer or employee. [Emphasis added to bold text]

Upon applying the strict meaning of the language of the statute, Code Section 25-4-105(3)(b)  absolutely prohibits an employee of any state agency from purchasing items at an auction held by a state agency other than the state agency which employs the individual.

Therefore, employees of state agencies, other than the state agency conducting the sale, may not purchase items at the auction being sold by the state agency in question.
 

ISSUE 3:  As set forth in the attached Advisory Opinion No. 98-057-E, Code Section 25-4-105(3)(b) absolutely prohibits an employee of a state agency from purchasing surplus property of his or her state agency employer at auction.

Therefore, an employee of the state agency in question may not purchase items at the auction  selling items belonging to the state agency in question.
 
 
 
 

Scott Rankin
Executive Director