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 employee of a county supervisor's district be paid additional compensation out of the solid waste fund [or general county fund] for work performed on the county's solid waste equipment on his own time or on county time?

          Your opinion request to the Office of the Attorney General dated April 24, 1995, was referred by that Office to the Mississippi Ethics Commission on April 26, 1995, as your request involves the above issue that concerns the Mississippi conflict of interest laws. The Office of the Attorney General will be responding to your request in regard to how other state laws may affect the above issue.

          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.

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

I am writing as Board Attorney for a County Board of Supervisors to request an opinion on the following issue dealing with employee compensation:

Can a mechanic or other county worker who is employed and paid by a specific supervisor's district be paid additional compensation out of the Solid Waste fund (or general county fund) for work performed on Solid Waste equipment on his own time? on county time?

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

Code Section 25-4-103(a), (e), (f)(i)(ii), (g)(i), (h) and (p)(ii) states:

"(a) 'Authority' means any component unit of governmental entity.

(e) 'Compensation' mean money or thing of value received, or to be received, from any person for services rendered.

(f) 'Contract' means:

(i) Any agreement to which the government is a party; or

(ii) Any agreement on behalf of the government which involves the payment of public funds.

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

(i) Counties.

(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:

(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."

Code Section 25-4-105(3)(a), (4)(b) and (4)(h) states:

"(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.

(4) Not withstanding the provisions of subsection (3) of this section, public servant or his relative:

(b) May be a contractor or vendor with any authority of the governmental entity other than the authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which he is a member, officer, employee or agent where such contract is let to the lowest and best bidder alter competitive bidding and three (3) or more legitimate bids are received or where the goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws.

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee."

          The Commission formally adopts Advisory Opinion No. 90-064-E in response to this request and by attachment incorporates it into this opinion.

          Based solely on the facts and circumstances presented herein, the Commission's opinion is that contracting with the county district's employee, either as an independent contractor or in another distinct employment position within the solid waste department, would be under the jurisdiction of the board of supervisors and therefore be prohibited by the above cited Code Section 25-4-105(3)(a).

          This finding is supported by the exceptions set forth in the above cited Code Section 25-4-105(4)(b)(h). These subsections only allow a public servant to be a contractor of; be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which he or she is an employee.

          Clearly, the county board of supervisors is the authority of the governmental entity presently employing the public servant and would be the authority contracting with the public servant in the proposed position with the solid waste department.

          Not withstanding the above, the conflict of interest laws do not prohibit public servants from performing the appropriate duties of their employment position for any department of the employing governmental entity. 

         The proper procedures in assigning the duties of a public servant between departments and the applicable funds to be used to compensate the public servant performing the assigned duties between departments are appropriate subjects for an Attorney General's opinion.
 
 

Ronald E. Crowe Executive Director