ADVISORY OPINION NO. 06-057-E

September 1, 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 25-4-101, Miss. Code of 1972.

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.

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.

I am currently employed with the state of Mississippi. I am seeking election for the local school board district. I am asking for a clearance according to the Code of Ethics from the state of Mississippi in order for me to seek the position.

III. ANALYSIS

Pursuant to Section 25-4-105(3)(a), Miss. Code of 1972, quoted above, no public servant may be employed by or otherwise be a contractor to the same “governmental entity” he or she serves, subject to some very limited statutory exceptions contained in Section 25-4-105(4). The State and a school district are separate governmental entities, as that term is defined in Section 25-4-103(h), Miss. Code of 1972, also quoted above. Thus, the requestor is not prohibited from serving on a school board while being employed by the State. 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.

Furthermore, the requestor should pay particular attention to the guidelines set forth in Section 25-4-101, Miss. Code of 1972, quoted above. Public servants should conduct themselves in a manner which enhances the public trust in government and avoid actions which may tend to create public suspicion regarding the honesty and integrity of those in government. If the requestor is elected to the school board, he or she should refrain from participating in any matter coming before the school board which might affect the state department for which she works. To do otherwise could create suspicion among the public and damage the public image of both governmental entities.

MISSISSIPPI ETHICS COMMISSION


BY: Tom Hood, Executive Director and
Chief Counsel