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 February 8, 1996.

May an uncompensated volunteer fire fighter sell fire-fighting equipment to the municipal volunteer fire department of which he is a member?

    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 governmental entity &e not addressed by this opinion.

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

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

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

(ii) Municipalities.

(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 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(3 )(a) state:

"(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."

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

I have been authorized by the Town's Mayor to write and request an Ethics Commission Official Opinion from your office regarding the legality and propriety of the Town's Volunteer Fire Department purchasing smaller type fire-fighting equipment such as fire extinguishers, breathing apparatus, et cetera, from a local businessman who happens also to be a non-compensated member of the Volunteer Fire Department.

As I understand, to become a volunteer fireman requires only the act of volunteering and attending and completing the required training. Ml members of the Volunteer Fire Department receive no compensation whatsoever from the Town while serving as a volunteer fireman.

The money used for such purchase may be money received from the Town's Volunteer Fire Department's fund raising events or from fire revenues received through the Town from public sources. Certainly, any purchase would be made only if the equipment was offered for sale at the lowest price.

The questions we ask for an Official Opinion on are:

(1) May a local businessman who happens also to be a member of the Town's Volunteer Fire Department legally sell fire-fighting equipment to the Town's Volunteer Fire Department?

(2) If legally allowable, would the source of the funds used for such purchases make a difference?

(3) Your guidance and comments regarding any aspect that needs to be addressed in this factional scenario not specifically asked that would affect the legality and propriety of the Town's contemplated purchases.

    In addition to the above facts and circumstances, the requestor also advised that the volunteer fire department which is the subject of the request is not a non-profit corporation but is established by the municipality and manned by volunteers.

    The Commission formally adopts Advisory Opinion No. 91-079-E in partial response to this request and by attachment incorporates its into this opinion.

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

    The Commission has consistently held, as set forth in Advisory Opinion No. 91-079-E, that a volunteer fire fighter that is being compensated by a municipality is a part-time or full-time municipal employee, and therefore a public servant under the definition set forth in the above cited Code Section 254-103(p)(iii). This is the case when the volunteer fire department is a non-profit corporation, as well as, when the fire department is publicly owned. This position is supported by the attached Attorney General's Opinions to Wi/ham R.. Fortier, April 4, 1990; Rebecca Cart/edge Taylor, December 13, 1989; Gerald B. Carmichael, March 2, 1989; Dewitt T Al/red, Jr., April20, 1988; and, Stanford Young, March 12, 1986.

    Therefore, based on the above, a volunteer fire fighter compensated by the municipality his or her volunteer fire department serves is a public servant of the municipality. As a public servant of the municipality, the compensated volunteer fire fighter's selling of fire equipment to the municipality is prohibited by the above cited Code Section 25-4-105(3)(a). Also, the compensated volunteer fire fighter's selling of fire equipment to the volunteer fire department funded by the municipality is prohibited by Code Section 25-4-105(3)(a).

    An uncompensated volunteer fire fighter is a different matter. An uncompensated volunteer fire fighter cannot be a public servant under the definition set forth in Code Section 25-4-103(p)(iii). However, if Code Section 25-4-103(p)(i) or (p)(ii) applies, an uncompensated volunteer fire fighter would be a public servant.

    Code Section 25-4-103(p)(i) is not applicable, since a volunteer fire fighter is not an "elected or appointed official of government".

    Therefore, the issue as to whether or not an uncompensated volunteer fire fighter is a public servant rests on the definition set forth in Code Section 25-4-103(p)(ii) which requires two separate findings. First, the volunteer fire fighter must be an "officer, director, commissioner, supervisor, chief; head, agent or employee of the government or an 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" Second, the volunteer fire department must be "funded by public funds or which expends, authorizes or recommends the use of public funds."

    The Commission finds that an uncompensated volunteer fire fighter serving a publicly owned fire department meets both requirements of Code Section 25-4-103(p)(ii) and is a public servant. Therefore, he or she would be prohibited by Code Section 25-4-105(3)(a) from being a contractor, subcontractor or vendor with the municipality and/or its publicly owned fire department.

    Notwithstanding the above, the Commission finds that if the uncompensated volunteer fire fighter has been serving a volunteer fire department established as a non-profit corporation that situation does not meet the requirements of Code Section 25-4-105(p)(ii). Even though a non-profit volunteer fire department receives public funds and/or expends, authorizes or recommends the use of public funds, it is not a government or agency thereof; or a public entity created by or under the laws of the State or created by an agency or governmental entity of the State.

    In fact, non-profit volunteer fire departments are not-for-profit corporations established under Code Section 79-11-101, et seq., 1972 Mississippi Code Annotated, and must contract with the municipality to receive public funding for providing fire protection services. This finding is supported by the attached Attorney General's Opinions to Pat Donald, May 22, 1991; Conrad Mord, February 22, 1990; and, James W Henley, January 24, 1990.

    In the Mord opinion, The Attorney General opined, "First, we predicate our comments on the understanding that your reference to "volunteer fire departments" refers to private non-profit organizations formed in accordance with the Mississippi Non-profit Corporation Act or Miss. Code Ann. §79-11-1 rather than publicly owned fire departments that are manned by volunteers. With this qualification in view, this office is of the opinion that non-profit volunteer fire departments are not bound by the state's public purchasing laws notwithstanding all or a portion of the funding for such organizations comes from the county [city]."

    If such a non-profit volunteer fire department is not required to follow the state purchasing laws, than it is difficult to find that it is a government or agency thereof; or a public entity created by or under the laws of the State or created by an agency or governmental entity of the State.

    Therefore, the Commission finds that an uncompensated member of a publicly owned volunteer fire department is a public servant under the definition set forth in Code Section 25-4-103 (p)(ii), and therefore, is prohibited from being a contractor, subcontractor or vendor with the municipality and/or the municipality's fire department manned by the volunteers.

    Furthermore, the Commission finds that an uncompensated member of a volunteer fire department established as a non-profit corporation is not a public servant under the definition set forth in Code Section 25-4-103(p)(ii), and therefore, is not prohibited from being a contractor, subcontractor or vendor with the non-profit volunteer fire department.

    The funding of a volunteer fire department must be considered in its totality. The public funds and private funds cannot be separated. A volunteer fire department's ability to make expenditures, including the purchasing of fire fighting equipment, is contingent upon all its revenues. Therefore, the particular source of the funds used in the purchase makes no difference when the total revenues are supplemented by public funds.
 
 

Ronald E. Crowe Executive Director