95-116-E

ADVISORY OPINION NO. 95-116-E November 10, 1995 This Advisory Opinion concerns the following issue as formulated from facts andlor circumstances flirnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on November 10, 1995.

May a county supervisor teach an emergency medical technician [EMT] course at a private company and be compensated by the private company when the course is being taught for a community college which is flinded by the supervisor's county?

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 rnles and regulations of the state governmental entity are not addressed by this opinion.

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

Constitutional Section 109 states:

"No public officer or member of the legislature shall be interested, directly or indirectly, in any contract with the state, or any district, county, city, or town thereof authorized by any law passed or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year afier the expiration of such term."

Code Section 25-4-101 states:

"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."

Code Section 25-4-103(f)(i)(ii), (g)(i)(ii)(iii)(iv)(v), (h), (1) and (p)(i)(ii)(iii) states:

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

(ii) Municipalities;

(iii) All school districts;

(iv) All courts; and

(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 flinds.
(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.
(I) '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 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."
Code Section 25-4-105(1) and (2) states:
"(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.
(2) No public servant shall be interested, directly or indirectly, during the term for which he shall have been chosen, or within one (1) year after the expiration of such term, in any contract with the state, or any district, county, city or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member."

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
As you will recall from our telephone conversation on Thursday, October 12, 1995, we at the Community College need an interpretation from the Mississippi Ethics Commission as to whether a county supervisor can teach an Emergency Medical Technician course at a Corporation if that company contracts with the county supervisor and pays him directly for teaching. He would be teaching the class for the Community College, however, there would be no contract or teaching agreement between the Community College and the county supervisor. And, there would be no payment made by the Community College to the county supervisor, either directly or indirectly. The assistant instructor for the course would be paid by the Community College.

The county supervisor is a very capable EMT instructor who taught numerous EMT classes for the Community College prior to his being elected supervisor.

In addition to the above facts and circumstances, the requestor provided the following information to the Commission's staff.

The community college is approved by the Mississippi Department of Education, Office of Industrial Training, Vocational and Technical Education, to provided the certified training for the emergency medical technician [EMT] course and, therefore, must be involved in order for the private company's employees to be certified upon completion of the course. The private company, the community college and the Mississippi Department of Education enter into a "Training Agreement" and the private company pays the community college's actual expenses either out of its flinds or from fees collected from its employees. A blank copy of a "Training Agreement" is attached and thereby incorporated into this opinion.

The Commission formally adopts Advisory Opinion No. 93-176-E in response to this request and by attachment incorporates it into this opinion.

The attached advisory opinion provides that a county supervisor 5 compensation as an EMT instructor by a community college that the supervisor 5 county flinds is prohibited by Constitutional Section 109 and Code Section 25-4-105(2).

Based on the facts and circumstances provided by the requestor, the Commission's opinion is as follows.

A county supervisor's service as an EMT instructor for a community college which the supervisor's county flinds is prohibited by Constitutional Section 109 and Code Section 25-4-105(2), cited above, not only when the supervisor is compensated directly by the community college but when he is paid by a private company contracting with the community college to provide the EMT course.

Clearly, without the community college's "Training Agreement" with the private company, there would be no contract between the private company and the county supervisor. Thus, the county supervisor would have an interest in the agreement.

Therefore, the supervisor in effect went from being a contractor with the community college to being a subcontractor with the community college. Constitutional Section 109 and Code Section 25-4-105(2) prohibits not only direct contractual relationships as presented in the attached advisory opinion, but indirect contractual relationships as presented herein.

Ronald E. Crowe Executive Director