ADVISORY OPINION NO. 06-103-E

January 12, 2007

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.

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

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

(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.

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

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee.

II. FACTS

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

I have been asked to get a written opinion on a matter we have had come up here in the County.

We have had 2 of our Election Commissioners resign. Our Board of Supervisors would like to appoint 2 persons to replace them that work for the Correctional Facility here in the county.

One is a person who drives a van of inmates to and from and supervises them while they do county work. They pick up trash and do jobs around the county.

The other one is a Corrections Officer. We have several phone calls, and much interest in this, and we called and got an Advisory Opinion, but was told that an elected official of the county could not also be employed by the county.

Since we are getting so much interest in this, would you please send up a written opinion on this.

III. ANALYSIS

Section 25-4-105(3)(a), Miss. Code of 1972, above, prohibits a public official from being employed by or otherwise being a contractor “with the governmental entity of which he is a member, officer, employee or agent.” The “governmental entity” involved here is the county, as defined in Section 25-4-103(h). Pursuant to Section 47-5-931, Miss. Code of 1972, the Mississippi Department of Corrections “may contract with the board of supervisors of one or more counties and/or with a regional facility jointly operated by two (2) or three (3) counties” to house state inmates. The regional facility in question is named in this statute, and the employees of that facility are employees of the county which the requestor serves.

However, Section 25-4-105(4)(h) provides an exception to this restriction. The county election commission is a separate “authority” of county government, as defined in Section 25-4-103(a) and as the Commission has previously found in Ops. Miss. Ethics Commn. No. 04-013-E and 96-112-E. Therefore, the individuals in question may simultaneously “be employed by or receive compensation from” the election commission and the regional correctional facility without violating Section 25-4-105(3)(a).

MISSISSIPPI ETHICS COMMISSION


BY: Tom Hood, Executive Director and
Chief Counsel