ADVISORY OPINION NO. 07-009-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.

(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.

(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 an advisory opinion pertaining to conflict of interest of public servants.

Do the state conflict of interest laws prohibit an individual from qualifying and campaigning for the office of county constable, and, if elected, serve as county constable while simultaneously being employed as a Mississippi Department of Wildlife, Fisheries & Parks Conservation Officer?

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 county constable while being employed as a Conservation Officer with the Mississippi Department of Wildlife, Fisheries & Parks.

Additionally, Section 25-4-105(1), Miss. Code of 1972, precludes a state employee from using his or her position in state government to benefit themselves. This rule will prohibit a state employee from using state resources, equipment or work time in furtherance of other pursuits, such as a private business or service as constable. Therefore, the requestor, if elected, must perform constable duties while taking personal leave from his state job and may not use resources belonging to the state agency.

MISSISSIPPI ETHICS COMMISSION

BY: Tom Hood, Executive Director and
Chief Counsel