This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on December 6, 1996, basing its approval solely on the facts and circumstances stated herein.

May the director of the information management division of a state agency provide computer consulting services to private individuals, firms, political candidates and elected officials?

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

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), (g)(v), (h), (1), (m) and (p)(ii) 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.

(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:

(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."

Code Section 25-4-105(1) 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.

(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 intormation."

I am requesting an opinion regarding part-time consulting services I provide to private individuals, firms, political candidates, and elected officials.

Currently, I am employed by a state agency as the Director of the Information Management Division. I provide computer consulting services during non-business hours which do not conflict with my duties at the state agency. I privately own the resources used in conjunction with my consulting services and am ever mindful of possible conflict of interest.

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

As stated in the attached opinion, the state conflict of interest laws do not prohibit a state employee from contracting with another governmental entity or a private business. The opinion's finding also would apply to a state employee contracting with private individuals, firms, political candidates and elected officials.

Notwithstanding the above, the requestor should remain keenly aware of the above cited Code Section 25-4-105(1) and (5).

Code Section 25-4-105(1) prohibits a public servant, including a state employee, from using his or her position to obtain a pecuniary benefit for himself or herself or a business with which he or she is associated.

Therefore, the requestor should totally and completely recuse himself from any matter under review by his state agency concerning one of his private clients. This is especially true in this instance since the state agency employing the requestor has broad oversight authority of elected officials.

Code Section 25-4-105(5) prohibits a public servant, including a state employee, from using non-public information gained by reason of his or her employment in any way that could provide a pecuniary benefit to himself or herself or any other person. A person would include private individuals, firms, political candidates and elected officials.

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.

Code Section 25-4-101 requires both public employees and public entities to consider when a course of conduct is contrary to public policy. Therefore, the requestor should verify with the state agency/employer whether it has a policy that would limit his computer consulting service.

The requestor's state agency/employer has broad regulatory and investigative authority over public officers and public entities at the state and local levels and has the right and responsibility to establish policies that are consistent with the Legislature's "Declaration of Public Policy" and the state agency's statutory mission.

Ronald E. Crowe Executive Director