This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on May 5, 1995.

Are the Mississippi Ethics in Government laws violated should an economic development authority sell property located in one of its industrial parks to a company owned by the spouse of the assistant director of the economic development authority? The Mississippi Ethics Commission is restricted to interpreting and issuing opinions on

Sections 25-4-101 through 25-4-119, 1972 Mississippi Code Annotated and Article IV, Section 109, Mississippi Constitution of 1890. Therefore, Mississippi laws outside the jurisdiction of the Commission and internal rules and regulations of the local governmental entity are not addressed by this opinion.

The pertinent conflict of interest laws to be considered here are:

Code Section 25-4-103(g)(v), (h), (p)(i)(ii)(iii) and (q) states:

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

(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.

(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, direct or indirect, 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

(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.

(q) 'Relative' means the spouse, child or parent." Code Section 25-4-105(3)(b) states:

"(3) No public servant shall:

(b) Be a purchaser, direct or indirect, at any sale made by him in his official capacity or by the governmental entity of which he is an officer or employee, except in respect of the sale of goods or services when provided as public utilities or offered to the general public on a uniform price schedule."

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered part of this opinion.

I have been employed as Assistant Director of the Economic Development Authority/Foundation (a public/private entity) for over 2 years and have a question for your consideration and clarification.

The job I have requires that I promote the County's business climate, quality of life, and any amenities that would enhance job creation and community development. Additionally, I feel that it is essential that I practice what I preach as I recruit others to live and work here. In that vein, from the commencement of my employment here I have been encouraging my husband, who owns a small business in a city outside the County, to relocate to this County. He currently rents space and has wanted to buy land and build his own building for a long time, so he agreed to look.

After searching the county over the best location for a paving company/asphalt plant, he has set his sites on a few acres in a remote area of our public industrial park (as yet undeveloped, but road construction has begun through it.) The acres that interest him can be utilized for little else because of their inaccessibility and flood status. The Authority's Board of Directors is currently getting two appraisals of the property so that fair market value can be determined.

Once the Board has set a price on the property based on independent appraisals and determined if they actually want to sell it, is it all right for him to purchase the land since I work for the Board? I never considered conflict of interest an issue at all because:

1.1 own absolutely no stock in my husband's company.

2.1 have no participation whatsoever in the operation of his business.

3.1 have no vote or voice in Board decisions. (We do have voting Board members who are business owners with products or services to sell and do so through professional economic development association contacts and have been ruled as non- conflicting by your agency.)

4. The federal agency, who awarded the Authority an infrastructure grant about three years ago, was visited by our Executive Director and Board members about this and other matters concerning the industrial park. The federal agency said that there is no conflict to them.. just as long as the Board would be willing to put in writing intent to sell and even specify that the prospect is the husband of an employee.

I am sure that I have spent too much time in explanation, but it is the only way I know to cover all the bases. Please let me know if you see any problem at all or if there is any other information that you need.

I very much want to see some activity on that property from an economic development standpoint At the same time I want to see my husband bring to a close his year-long process of land evaluation, railroad crossing negotiation, and relocation indecision. I just want everyone to be happy with a new County business and proceed with the assurance that no conflict of interest exists on any level. Thank you so much for your time in consideration of this.

          Based solely on the facts and circumstances provided by the requestor, the Commission's opinion is that the purchase of the authority's property by a company owned by the spouse of the authority's assistant director violates the above cited Code Section 25-4-105(3)(b).

          This Commission has consistently held that a benefit accruing to one spouse accrues to the other spouse. Therefore, the purchase of the property by the assistant director's spouse results in the assistant director being at the worst a direct purchaser along with the spouse and at the least an indirect purchaser.

          The only exception to a public servant being a purchaser at a sale made by his or her governmental entity is "the sale of goods or services when provided by utilities or offered to the general public on a uniform price schedule." Clearly, the sale of real property does not qualify as goods or services. Even if real property was included in the exception, the appraisal process to determine the value of a specific parcel of realty and the negotiation between the two parties would not qualify as being "offered to the general public on a uniform price schedule."

Ronald E. Crow Executive Director