ADVISORY OPINION NO. 06-038-E

June 9, 2006

The Mississippi Ethics Commission issued this opinion on the date shown above in accordance with Section 25-4-17(i), Mississippi Code of 1972, as reflected upon its minutes of even date. The Commission is empowered to interpret and opine only upon Article IV, Section 109, Mississippi Constitution of 1890, and Article 3, Chapter 4, Title 25, Mississippi Code of 1972. This opinion does not interpret or offer indemnity from liability for any other laws, rules or regulations. The Commission based this opinion solely on the facts and circumstances provided by the requestor as restated herein. The indemnity provided under Section 25-4-17(i) is limited to the individual who requested this opinion and to the accuracy and completeness of these facts.

I. LAW

The pertinent Ethics in Government Laws to be considered here are as follows, to wit:

Section 25-4-103, Miss. Code of 1972.

(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.

Section 25-4-105, Miss. Code of 1972.

(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.

II. FACTS

Facts provided by the requestor are set forth below, with identifying information redacted, and are considered a part of this opinion.

May the attorney for the Board of Supervisors be appointed as garbage court judge for the county, to hear cases on whether a property owner owes or does not owe a bill to the county for garbage pickup and disposal service rendered by a contractor hired by the county?

III. ANALYSIS

Section 25-4-105(3)(a), Miss. Code of 1972, quoted above, prohibits a public servant of a county from being a contractor, subcontractor or vendor to the county. However, the statute does not preclude one individual from performing multiple duties pursuant to one contract of employment. Thus, the board of supervisors may legally appoint one individual to serve as board attorney and as garbage court judge so long as that individual draws only one paycheck pursuant to one contract. The requestor may also wish to consult with the Office of the Attorney General regarding Sections 1 and 2, Miss. Const. of 1890, the Separation of Powers Rule, and other potential issues arising outside the Ethics in Government Laws.

MISSISSIPPI ETHICS COMMISSION

BY: Tom Hood, Executive Director and
Chief Counsel