ADVISORY OPINION NO. 07-024-E

March 2, 2007

Your opinion request to the Office of the Attorney General dated February 6, 2007, was referred by that Office to the Mississippi Ethics Commission on February 14, 2007, as your request involves the above issue that concern the Mississippi conflict of interest laws.

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.

(b) “Benefit” means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.

(c) “Business” means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a nonprofit corporation or other such entity, association or organization receiving public funds.

(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.

(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.

(k) “Material financial interest” means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00);

(iii) The income as an employee of a relative if neither the public servant or relative is an officer, director or partner in the business and any ownership interest would not be deemed material pursuant to subparagraph (i) or (ii) herein; or

(iv) The income of the spouse of a public servant when such spouse is a contractor, subcontractor or vendor with the governmental entity that employs the public servant and the public servant exercises no control, direct or indirect, over the contract between the spouse and such governmental entity.

(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.

You will please be advised that I have been requested by the City to request an official opinion on the above referred to matter:

First of all, let me advise you of the facts which would surround this request. One of the City Police Officers apparently owns or has an interest in a towing service which tows wrecked vehicles and broken-down vehicles. The vehicle owner is typically responsible for the towing fee and no fees are paid by the City. Currently this towing service is on a list with the City to tow cars within the City. This is a list which is compiled by the Police Department and is not a list that is approved by the Mayor and/or Board of Aldermen.

The City’s question is as follows: May a City Police Officer own in whole or in part a wrecker service and be allowed to tow cars within the City at the request of the City Police Department?

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). Thus, the police officer’s wrecker service is prohibited from providing towing services to the municipality and from being paid by the municipality.

Additionally, Section 25-4-105(1), Miss. Code of 1972, precludes a city police officer from using his position on the police force to obtain a monetary benefit for himself. This rule will prohibit a police officer from contacting his wrecker service when he is the police officer working the accident and prohibits the police officer from recommending his wrecker service to a disabled vehicle’s owner when he is the police officer working the accident. If the disabled vehicle’s owner and not the municipality is responsible for the cost of the towing service, Code Section 25-4-105(1) will not prohibit the municipality’s police department from including a police officer’s wrecker service in its rotation for towing service if the municipality’s police dispatcher makes the service call to the police officer’s wrecker service only when it is next on the rotation list. Also, the vehicle owner is not prohibited from requesting the police officer’s wrecker service if the owner and not the municipality is responsible for the cost of the towing service. See also Op. Miss. Ethics Commn. No. 01-059-E.

These proposed facts also raise public policy concerns relating to Section 25-4-101, Miss. Code of 1972, quoted above. Public servants should conduct themselves in a manner which enhances public trust in government and avoid actions which may tend to create public suspicion about the honesty and integrity of those in government. The mere fact a city police officer will profit from towing calls placed by the police department is likely to reflect unfavorably upon the city government and should be avoided.

MISSISSIPPI ETHICS COMMISSION

BY: Tom Hood, Executive Director and
Chief Counsel