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.

May the employees of a business which is owned by a member of a community college board of trustees of another community college district, be trained by the community college district in which the business is located provided that payment is made by the employer for such training at the prevailing rate?

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 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(c), (d), (f)(i)(ii), (g)(v), (h), (1), (m) and (1))(i)(ii)(iii) states:

"(c) 'Business' means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a non-profit corporation or other such entity, association or organization receiving public funds.

(d) 'Business with which he is associated' means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.

(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:
 

(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.

(1) '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.

(m) 'Person' means any individual, firm, business, corporation, association,

partnership, union or other legal entity, and where appropriate a governmental entity.
 
(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 finds or which expends, authorizes or recommends the use of public finds; 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), (2) and (5) 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.

(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself any relative, or any other person, if the information has not been communicated to the public or is not public information."

I am hereby requesting that the Ethics Commission provide me with a response to the following question.

May the employees of a business which is owned by a member of a community college Board of Trustees of another community college district, be trained by the community college district in which the business is located provided that payment is made by the employer for such training at the prevailing rate?

This question arises out of a situation where a junior college trustee serving in one district is interested in securing services for employees of his business which is located in a different community college district. He has raised the question as to whether or not he is eligible to receive training or if he is eligible to receive training provided he pay related expenses.

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

The conflict of interest laws do not prohibit the employees of a business which is owned by a member of a community college board of trustees from being trained by a community college district other than the one the employer serves when the employer provides for payment of the training at the prevailing rate.

Notwithstanding the above, the requestor is cautioned to advise the trustee to closely review the attached opinions in order to avoid violating the conflict of interest laws discussed therein.

The attached opinions provide that any decision made by the trustee's board to allow a portion of its funding to be used, either by it or another college district, for the purpose of providing training services to the trustee's business results in a violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2). Constitutional Section 109 and Code Section 25-4-105(2) prohibit a trustee of a college from having an interest in a contract authorized by the board of which he is a member.

Also, the attached opinions provide that should the funding of the training services to the trustee's business not involve approval by the trustee's local college district, but comes from funds provided by other authorities acting in conjunction with other local college districts, still conflict of interest questions arise under the above cited Code Sections 25-4-101 and 25-4-105(1) and (5).

Ronald E. Crowe Executive Director