This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 6, 2005, basing its approval solely on the facts and circumstances stated herein.
 

May a State Commission headed by the executive officer of a State Department approve a State Department employee’s parent’s company to perform services on the State Commission’s facility site?

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(d), (g)(v), (h), (l), (p)(ii)(iii) and (q) states:
 

“(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.

(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.

(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.

(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.

(q) ‘Relative’ means the spouse, child or parent.”

Code Section 25-4-105(1) 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.”

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

As Commissioner of a Department of the State, I am requesting an official Ethics Commission Opinion pursuant to Miss. Code Ann. Section 25-4-1 et seq.

By virtue of my position as Commissioner of the Department, I serve as the chairman of a state Commission which oversees and manages a state facility headquartered in connection with the office of the Department. Although the Commission is a separate body politic, it is under the management and control of the Commission.

I have been contacted by a Company which provides service work and various functions throughout the Southeast, requesting permission to perform the services on the state property.  The son of the sole owner of the Company is employed as a state employee with the Department’s Marketing Division.  The employee does not  receive any monetary or compensatory benefit from the company.

I have the following question:  Although the employee has no ownership or employment interest in the Company, would a conflict exist if the Company, which is solely owned by his father, performs services on the state property?

Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.

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

The parent is a relative as defined in Code Section 25-4-103(q), cited above, and the parent’s company is a business with which the Department’s employee is associated as defined in Code Section 25-4-103(d), cited above.

Therefore, should the Department’s employee use his official position with the Department’s marketing division to assist the parent’s company in obtaining the Commission’s approval to perform services on the Commission’s facility site, he would violate Code Section 25-4-105(1).

Notwithstanding the above, the facts presented by the requestor indicate that the Department employee’s duties in the Department’s marketing division will not provide him the capacity or authority to use that position to assist the parent’s company in obtaining approval to perform services on the Commission’s facility site. Therefore, it is very unlikely that the Department employee will violate Code Section 25-4-105(1) should the Commission approve the parent’s company to perform services on its facility site.

Although the requestor has stated that the Department employee has no ownership or employment interests in the parent’s company, the requestor is advised that that the Department employee nor his spouse may have any personal and pecuniary interests of their own in the parent’s company. Generally, a personal and pecuniary interest would be of a kind associated with income, ownership, investment, or lender.
 

Scott Rankin
Executive Director