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 a county purchase supplies and/or commodities from a company owned by the county supervisor's brother?

    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 are not addressed by this opinion.

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

In my capacity as counsel for the County Board of Supervisors, I have been asked by a Supervisor to request an advisory opinion regarding the following:

Pursuant to Section 31-7-31 of the Mississippi Code of 1972, as amended, the County Board of Supervisors, in June and December of each year, advertises for competitive bids from vendors for the purpose of insuring that the county has a readily available supply of commodities. The low bidders are awarded contracts on a six (6) month basis. The term "commodities" includes, but is not limited to, gasoline, diesel fuel and related petroleum products.

The Supervisor took office effective January 1, 1996. For several years prior to the date hereof, the brother of the Supervisor has owned and operated an oil company. On various occasions, the Supervisor's brother has been the successful low bidder for the supply of petroleum products for the County.

Does the Ethics in Government law of the State of Mississippi prohibit the brother of a duly elected supervisor from the competitive bidding process as described herein?

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), (f)(i)(ii), (g)(i), (h), (p)(i)(ii)(iii) and (q) 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.

(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;

(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.

(q) 'Relative' means the spouse, child or parent."

Code Section 25-4-105(1), (2) and (3)(a) 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.

(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."

    The Commission formally adopts Advisory Opinion No. 95-146-E in response to this request and by attachment incorporates it into this opinion. Specifically, the requestor is referred to Issue 1 in the attached opinion.

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

    The supervisor's county may do business with his brother's company as a brother is not a "relative" under the Ethics in Government law's definition set forth in the above cited Code Section 25-4-103(q).

    Notwithstanding the above, this 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 it is 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 supervisor's county's purchasing of supplies from the supervisor's brother's company has the potential of creating suspicion among the public and reflecting unfavorably upon the county.

    Notwithstanding the above, the supervisor may not have an interest, direct or indirect, in his brother's company as such an interest would result in the brother's company's contracts with the county being prohibited by the above cited Constitutional Section 109 and Code Section 25-4-105(2) and/or (3)(a).

    The requestor is cautioned to advise the supervisor that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2) and (3)(a). Even without the supervisor's vote, the authorization by the board of supervisors to purchase from a company in which the supervisor has an interest, direct or indirect, nonetheless results in a contract in which the supervisor has a prohibited interest.
 
 
 

Ronald E. Crowe Executive Director