This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by two separate requestors. The Commission approved this opinion on March 25, 2005, supplementing and replacing a previous opinion issued on November 5, 2004,
basing its approval solely on the facts and circumstances stated herein.
 

ISSUE 1. May an employee of the State Tax Commission’s Equalization Division who performs appraisal work for the State resign that position and contract for appraisal work with a county in which he has never performed
work for the State Tax Commission?

ISSUE 2: May an employee of the State Tax Commission’s Equalization Division who performs appraisal work for the State simultaneously seek employment with a county governmental entity for its appraisal work either
by applying for the job or by participation in a competitive bidding process?

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(e), (g)(i)(v), (h), (i), (l), (o) and (p)(i)(ii)(iii) states:
 

“(e) ‘Compensation’ means money or thing of value received, or to be received, from any person for services rendered.

(g) ‘Government’ 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.

(i) ‘Income’ means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.

(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) and (3)(e) 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:

(e) Perform any service for any compensation for any person or business after termination of his office or employment in relation to any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated during the period of his service or employment.”

Pertinent facts and circumstances provided by the original requestor on October 25, 2004, absent identifying data, are set forth as follows and considered a part of this opinion.
 

May an appraiser for the Mississippi State Tax Commission (MSTC) Equalization Division apply for work in a County while employed by the State of Mississippi?

MSTC appraisers are assigned to specific counties in one of three certain districts to gather specific information requested by their supervisors. Actions on this information are by persons in higher supervisory positions. If there is any question of accuracy of the state employee’s work an appeal process is in place that allows for the review of the state employee’s work.

May a MSTC appraiser submit a sealed bid for publicly announced work in a County in which the state employee is not assigned?

The question is not doing both jobs at the same time. The question: Does a state employee have to quit ones employment to seek work in a County to avoid a conflict of interest?

In telephone conversations with a member of the Commission’s staff prior to the submission of the written request on October 25, 2004, the original requestor predicated this question upon his intention to retire from his position with the Mississippi State Tax Commission if he were awarded the county contract in question. The original requestor has subsequently asked that this request be clarified to reflect his clear intention to resign his employment with the state if he is awarded the proposed contract. The original requestor also reported that, not only is the county in question outside his assigned territory, but he has never performed work in that county during his tenure with the State Tax Commission.

Pertinent facts and circumstances provided by the subsequent requestor on February 25, 2005, absent identifying data, are set forth as follows and considered a part of this opinion.

On November 4, 2004, Advisory Opinion 04-105-E was issued wherein the Commission answered affirmatively the following question:
 

May an employee of the State Tax Commission’s Equalization Division who performs appraisal work for the State resign that
position and contract for appraisal work with a county in which he has never performed work for the state agency?

The question we pose for clarification of Opinion No. 04-105-E is as follows:
 

May an employee of the State Tax Commission’s Equalization Division who performs appraisal work for the State simultaneously seek employment with a county governmental entity for its appraisal work either by applying for the job or by participation in a competitive bidding process?

We think it is relevant for the Commission to know that in any instance where a State Tax Commission (STC) appraiser seeks work offered by a county, the potential exists for the STC appraiser to compete against appraisers whose work he reviews in other counties. This is true regardless of whether the STC appraiser has previously reviewed appraisals from the county that is advertising for the job.

Based solely on the facts and circumstances presented by the two requestors, the Commission supplements and replaces its original opinion by issuing the following opinion in response to ISSUE 1 and in response to ISSUE 2.

ISSUE 1. If the original requestor is awarded the county contract and resigns his position with the State Tax Commission, only one provision of the Ethics in Government Laws will apply to him as a former public servant, Section 25-4-105(3)(e), Miss. Code of 1972, quoted above. That subsection prohibits a former public servant from working on a matter in the private sector “with respect to which he was directly concerned or in which he personally participated during the period of his service or employment.” Because the original requestor has never worked in the county which is now soliciting bids, he has presumably not been “directly concerned” with or
“personally participated” in the subject matter of the proposed contract. Therefore, no violation of the Ethics in Government Laws will result if the original requestor resigns his current position with the State Tax Commission and accepts the proposed county contract.

However, if the original requestor or another similarly situated public servant intended to remain employed with the State Tax Commission while simultaneously entering into such a contract with a county, the Commission’s opinion would be different. The State’s public policy
mandate set forth in Code Section 25-4-101, cited above, causes this Commission real concern that a county would contract with a State Tax Commission employee to perform appraisal work when the State Tax Commission is the oversight agency for equalization and appraisal of real property for ad valorem tax purposes in this State.¹

Code Section 25-4-101 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 State’s public policy of public service being a public trust is clearly expressed in Code Section 25-4-101. The State Tax Commission’s Equalization Division’s employees being private appraisal contractors with counties which are regulated and subject to the authority of the State Tax Commission and its Equalization Division must be balanced against this clear statutorily declared public policy of public trust.

The duties of the State Tax Commission’s Equalization Division’s employees gives them the authority and responsibility to protect the public’s interest through the State Tax Commission’s inspection, regulation and review of the private appraisal contractors performing
work with counties.

The State Tax Commission’s Equalization Division’s employees contracting with counties to do their ad valorem tax appraisal work clearly can be expected to raise suspicion among the public and cause the State Tax Commission and its Equalization Division to appear in an unfavorable light to the public. Among the reasons for these expectations are: 1) the State Tax Commission’s Equalization Division’s employees’ private pecuniary interests as private appraisers can be seen by the public as tainting their desire to see the State Tax Commission’s regulations are strongly enforced; 2) other private appraisers could begin to question the State Tax Commission’s independent and fair enforcement of its regulations when its employees are also private appraisers; and 3) the State Tax Commission and its Equalization Division, as a regulatory authority, must be certain its employees are always looking after the public’s interest and not their private interests.

The State Tax Commission and its Equalization Division have been given the important public responsibility of protecting the public’s interest in a fair and equal tax system. Therefore, every effort should be made to assure the public that this responsibility is foremost to the State Tax Commission and its employees.

Based on the above, our opinion is that the State’s public policy of public service being a public trust, as set forth in Code Section 25-4-101, is a sufficient reason to forbid the State Tax Commission’s Equalization Division’s employees who perform appraisal work for the State from cont racting with counties to do ad valorem tax appraisal work as such work is regulated and subject to the authority of the State Tax Commission and its Equalization Division. [Emphasis added]
 

ISSUE 2. The original Advisory Opinion No. 04-105-E issued on November 5, 2004, was expressly predicated on the original requestor’s clear intention to retire from his position with the Mississippi State Tax Commission if he were awarded the contract in question, which concerned a county in which the original requestor had never worked while employed by the Tax Commission. The original opinion, now set forth above as ISSUE 1, also holds it would be contrary to public policy for a current employee of the State Tax Commission’s Equalization Division to simultaneously hold a position as appraiser for any county.

However, Section 25-4-105(1), Miss. Code of 1972, quoted above, does not prohibit that employee from merely applying for the job of county appraiser or participating in a competitive bidding process for that job. Code Section 25-4-105(1) in part prohibits public servants from using their official positions to create a monetary benefit for themselves.

Notwithstanding the above, an employee of the State Tax Commission’s Equalization Division would be prohibited from using that position to somehow affect the application or competitive bidding process for county appraisal work in such a way as to benefit himself financially. Specifically, the employee would be prohibited from using his position with the Tax Commission to discourage others from bidding or applying for the county appraiser work. If the employee is awarded the county appraisal contract, he or she should resign his or her position with the State Tax Commission before executing the county appraisal contract.

Naturally, any governmental entity or authority is free to adopt personnel policies or regulations which are more restrictive but not less restrictive than state law, including the Ethics in Government Laws, and in this instance such policies or regulations would be compliant with Section 25-4-101, Miss. Code of 1972, cited above. [Emphasis added]

As the Commission stated in the original advisory opinion, now set forth above as ISSUE 1, the State’s public policy of public service being a public trust is clearly expressed in Code Section 25-4-101. The State Tax Commission’s Equalization Division’s employees being private appraisal contractors with counties which are regulated and subject to the authority of the State Tax Commission and its Equalization Division must be balanced against this clear statutorily declared public policy of public trust.

The State Tax Commission’s Equalization Division’s employees submitting bids for private appraisal work with counties which are regulated and subject to the authority of the State Tax Commission and its Equalization Division also must be balanced against this clear
statutorily declared public policy of public trust.

The State Tax Commission’s Equalization Division’s employees bidding for contracts, as well as, contracting with counties to do their ad valorem tax appraisal work clearly can be expected to raise suspicion among the public and cause the State Tax Commission and its
Equalization Division to appear in an unfavorable light to the public. Among the reasons for these expectations are: 1) the State Tax Commission’s Equalization Division’s employees’ private pecuniary interests as private appraisers, or as bidders to become private appraisers, can be seen by the public as tainting their desire to see the State Tax Commission’s regulations are strongly enforced; 2) other private appraisers could begin to question the State Tax Commission’s independent and fair enforcement of its regulations when its employees are also private appraisers or seeking to become private appraisers; and 3) the State Tax Commission and its Equalization Division, as a regulatory authority, must be certain its employees are always looking after the public’s interest and not their present or future private interests.

The State Tax Commission and its Equalization Division have been given the important public responsibility of protecting the public’s interest in a fair and equal tax system. Therefore, every effort should be made to assure the public that this responsibility is foremost to the State Tax Commission and its employees.

Based on the above, our opinion is that the State’s public policy of public service being a public trust, as set forth in Code Section 25-4-101, is a sufficient reason to forbid the State Tax Commission’s Equalization Division’s employees who perform appraisal work for the State from bidding for contracts with counties to do ad valorem tax appraisal work as such work is regulated and subject to the authority of the State Tax Commission and its Equalization Division. [Emphasis added]

Scott Rankin
Executive Director
 
 

¹ See §§ 27-3-52, 27-35-50 (2)(4)(6), 27-35-113, 27-35-117 and 27-35-165, 1972 Miss. Code Ann. (amended), as examples of the Tax Commission’s authority over appraisers, appraisal contracts and equalization of property taxes by county governments.