ADVISORY OPINION NO. 07-034-E

April 6, 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.

On behalf of the Mayor and Board of Aldermen of the City, I would like to request an advisory opinion concerning duties of a city employee.

May our police chief accept additional duties with the City and serve as our city cemetery maintenance supervisor, using his own equipment, such as mowers, weed eaters, etc.?

III. ANALYSIS

Pursuant to Section 25-4-105(3)(a), Miss. Code of 1972, above, no public servant of a municipality may be a “contractor, subcontractor or vendor” to the municipality, subject to some narrow exceptions found in Section 25-4-105(4), none of which apply to these facts. When a public servant simultaneously holds two separate employment positions with the same governmental entity and receives separate compensation for each position, the public servant becomes a contractor by virtue of the second position and therefore violates Section 25-4-105(3)(a). However, if a public servant only accepts additional duties and receives additional compensation without violating the statute and is compensated with only one paycheck pursuant to one contract of employment, the town and the police chief may rescind the current employment contract and enter into a new contract which includes both police duties and maintenance duties.

MISSISSIPPI ETHICS COMMISSION


BY: Tom Hood, Executive Director and
Chief Counsel