OFFICIAL ADVISORY OPINION NO. 96-092-E
 
August 2, 1996

This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on August 2, 1996, basing its approval solely on the facts and circumstances stated herein.

State law restricts the Mississippi Ethics Commission 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, this opinion does not address the Mississippi laws outside the Commission's jurisdiction nor the governmental entities' internal rules and regulations.

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

"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 after 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), (h) and (p)(i) 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 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:
(i) Any elected or appointed official of the government." Code Section 25-4-105(2) states:
"(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.
I am the County's District 3 supervisor. As we are under a Unit System and our funds are short and our manpower limited, my district is in bad shape. The gravel roads are rough and the blacktop roads are full of potholes.
My question is, as we only meet 3 times a month and I have operated heavy equipment for many years, could I donate my spare-time to help improve them?

In a Unit System, 3 supervisors can control all 5 districts and all the men and it leaves 2 districts hurting.

Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is that a county supervisor it not prohibited by the conflict of interest laws from donating his services to the county. However, there would be a violation of Constitutional Section 109 and Code Section 25-4-105(2), both cited above, should the supervisor receive any direct or indirect personal pecuniary benefit from the county for providing the services.

The issue presented by the requestor also must be viewed as it relates to Code Section 25-4- 101, set forth above. This code section sets the tone for the conflict of interest laws as the Legislature's "Declaration of Public Policy." This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.

Clearly, a county supervisor's operating of the county's road equipment has the potential of creating suspicion among the public and reflecting unfavorably upon the county.

Notwithstanding the above, the requestor is advised to contact the Office of the State Auditor before operating the county's road equipment. The Office of the State Auditor must determine if if a supervisor's operation of the county's road equipment is prohibited by the laws establishing the county wide system of road administration.

Ronald E. Crowe Executive Director