ADVISORY OPINION NO. 06-105-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 109, Miss. Const. of 1890.

No public officer or member of the legislature shall be interested, directly or indirectly, in any contract with the state, or any district, county, city, or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term.

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

(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.

(f) “Contract” means:

(i) Any agreement to which the government is a party; or

(ii) Any agreement on behalf of the government which involves the payment of public funds.

(g) “Government” means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties;

(ii) Municipalities;

(iii) All school districts;

(iv) All courts; 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.

(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:

(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.

(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.

(2) No public servant shall be interested, directly or indirectly, during the term for which he shall have been chosen, or within one (1) year after the expiration of such term, in any contract with the state, or any district, county, city or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member.

II. FACTS

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

I currently serve as a supervisor in the County, and I also am employed as the Director of Building & Grounds for the City. On occasion, issues arise where, in particular, the City requests financial assistance from the County for various activities. Most recently, the City has asked the County to help defray the cost of building a recreational complex which would be operated by the Park Commission. Although my job-related duties with the City are unrelated to the activities performed by the Park Commission, including those relating to the operation of the proposed recreational complex, I want to be certain that my involvement in determining whether the County will provide funds for the development of the new complex does not present an actual ethical conflict. In the event the County decided to contribute funds in response to the City’s request, there is no reason to believe that the condition of my employment with the City would be affected (in terms of wages or any other condition).

Because this matter has some urgency, I would appreciate an expedited consideration and formal written opinion regarding whether I may vote in my capacity as a County supervisor with regard to the City’s request that the County help defray the cost of building and operating a proposed recreational complex to be run by the Park Commission.

III. ANALYSIS

Section 25-4-105(1), Miss. Code of 1972, prohibits a public servant like a county supervisor from using his position to obtain pecuniary benefit for himself, certain relatives or a business with which he is associated. The statute does not prohibit a benefit to another governmental entity. Here it appears the supervisor will not realize any pecuniary benefit from the park project or the proposed appropriation, as the expenditure is apparently earmarked for the stated purpose. Therefore, the supervisor is not prohibited from voting to appropriate county funds to the city when those funds will in no way result in a monetary benefit to him in his role as a city employee.

However, Section 109, Miss. Const. of 1890, and its statutory parallel, Section 25-4-105(2), Miss. Code of 1972, both quoted above, prohibit a member of a public board from having any direct or indirect interest in a contract with the government which is funded or otherwise authorized by that board during his or her term or for one year thereafter. Frazier v. State, ex rel. Pittman, 504 So.2d 675, 693 (Miss. 1987). Thus, if the appropriation to the city were to fund the supervisor’s city employment, not only would he be prohibited from voting, but the board of supervisors would effectively be prohibited from making the appropriation. Here, the facts show the appropriation in question will not fund the supervisor’s employment with the city. As previously noted, the funds appear to be earmarked for a specific purpose. This opinion is based upon the funds approved by the board of supervisors being committed to the stated purpose and not commingled with money used to fund the supervisor’s employment with the city. Consequently, no violation of Section 109 or Section 25-4-105(2) should arise from such an appropriation. 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