This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on January 9, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May a state department employee contract with a state university to serve as an evaluator under a grant and be paid for such services out of the grant’s contractual services category?

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 25-4-101 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(a), (c), (d), (f)(i)(ii), (g)(v), (h), (k)(i)(ii), (l), (o) and (p)(i)(ii)(iii) states:
 

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

(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) ‘Government’ 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.

(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.

(o) ‘Public funds’ means money belonging to the government.

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

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

(b) May be a contractor or vendor with any authority of the governmental entity other than the 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 he is a member, officer, employee or agent where such contract is let to the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received or where the goods, services or property involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws.”

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

I work for a department of the state as an Information Technology Planner.  My current project is coordinating a virtual high school.  I also coordinate two grants, one funded by the Bill and a foundation that encourages the integration of technology by administrators and another funded by an organization to put technology in the schools and make sure that it is used appropriately.  Providing technical assistance to districts for technology planning is also a very important part of my job at the department of the state.

I recently was asked to serve as an evaluators for a grant funded by a federal agency.  This project seeks to produce an exemplary teacher preparation and curriculum enhancement program.  The overall purpose of this project is to recruit, train, and retain a cadre of 30 minority middle school math and science teachers to teach in hard to staff area in the state.  Activities are designed to foster collaborations between a University’s School of Education, a Community College, a Public School District and a federal agency.  The project also offers students a strong system of support and opportunities for their professional growth.

With the attached information, I am seeking approval from the Ethics Commission to perform this part-time work in addition to my job at the department of the state.

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 state employee from being a contractor, subcontractor or vendor with the state, or its authorities, or from having a material financial interest in a business that is a contractor, subcontractor or vendor with the state or its authorities. “Material financial interest” is defined in the above cited Code Section 25-4-103(k)(i)(ii).

The state department and the state university are both “authorities” of the state as defined in the above cited Code Section 25-4-103(a).

The requestor being paid as a consultant under the contractual services category of the state university grant will result in the requestor being a contractor with the state university and therefore will bring the requestor within the restriction set forth in Code Section 25-4-105(3)(a).

The only applicable exceptions to a violation of Code Section 25-4-105(3)(a), in this instance, are found in Code Section 25-4-105(4)(b), cited above. The exceptions are:
 

• where such contract is let to the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received; or
• where the goods, services or property involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws.

It is this Commission’s opinion that the exception of  “two (2) or fewer commercial sources” would not apply, in this instance, as it is very unlikely that the evaluator services are limited to only two qualified individuals.

Therefore, the only applicable exception in this instance is if the evaluator service “is let to the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received.”

In summary, Code Section 25-4-105(3)(a) will prohibit the requestor, as a state employee, from contracting with the state university to serve as an evaluator under the grant, unless the state university selects the requestor as an evaluator after letting bids and receiving three (3) or more legitimate bids and determining the requestor’s bid is the lowest and best bid.

The requestor is also advised to remain aware of the prohibition set forth in Code Section 25-4-105(1), cited above, and the public policy mandate set forth in Code Section 25-4-101, cited above.

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

The requestor is advised that a state employee will be in violation of Code Section 25-4-105(1) should he or she use a state agency’s equipment, facilities or other resources to perform a private contract, such as providing the evaluator services to the state university.  Also, the requestor is advised that a state employee will violate Code Section 25-4-105(1) should he or she perform services under a private contract without taking personal leave from his or her state employment position.

The issue presented by the requestor also 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.

The requestor is advised that a state department employee contracting to provide private services to a state university can be expected to create suspicion among the public and reflect unfavorably upon the state department if the private contract services being performed for the state university are in any way subject to the review or approval of the state department. Under such a circumstance, a state department employee providing such private services to a state university would not comply with the public policy mandate set forth in Code Section 25-4-101.
 
 

Scott Rankin
Executive Director