ADVISORY OPINION NO. 07-001-E

February 2, 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.

(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 writing to request a written opinion concerning the following situation. I am currently an elected County Supervisor for the County, and I am also a Registered Pharmacist holding current license in the States of Mississippi and Alabama. I have been offered a Pharmacist job at a State Hospital and have accepted the job pending everything falls into place. An employee of the State Hospital has asked me to obtain a written opinion from the Ethics Commission to confirm that no conflict exists with the fact that I would continue to serve as County Supervisor and paid by the County while also being employed by the State of Mississippi as a Pharmacist and being paid by the State for my Pharmacy services. In telephone conversations a few months ago I was told by Ethics personnel that there appeared to be no conflict, but the State Hospital employee said he need it in writing and I certainly understand. Let me also say as a sideline that I’m aware that retirement must be paid from both entities to MS PERS if I’m employed by both, and that’s not a problem.

I have attached a letter from the County Administrator stating that the County does not contribute to the State Hospital.

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 county 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 as a county supervisor 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.

MISSISSIPPI ETHICS COMMISSION

BY: Tom Hood, Executive Director and
Chief Counsel