This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on June 7, 1996, basing its approval solely on the facts and circumstances stated herein.
May the chief appraiser for the county reappraisal office simultaneously own and operate a personal appraisal business?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 entity's internal rules and regulations.
The pertinent conflict of interest laws to be considered here are:
"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)(i), (h), (1), (m) and (p)(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.
(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.
(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 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."
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 information."Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
The chief appraiser in our County Reappraisal Office has opened her personal appraisal business. She has been certified by the State at the county's expense. Is it a violation for her to be employed as a County Appraiser and have her own personal appraisal business at the same time?Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is that the county's chief appraiser is not as such prohibited by the conflict of interest laws from simultaneously owning and operating a personal appraisal business.
Notwithstanding the above, the requestor is advised to caution the county's chief appraiser to remain keenly aware of the above cited Code Section 25-4-105(1) and (5).
Code Section 25-4-105(1) prohibits public servants from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business with which they are associated.
Therefore, the county's chief appraiser may not use her public position to obtain a pecuniary benefit for her personal appraisal business. In other words, she may not use the county's equipment, records or office space in her personal appraisal business. In addition, she may not do personal appraisal business during the hours the county is compensating her as chief appraiser.
Code Section 25-4-105(5) prohibits a public servant from using non-public information obtained through one's public position that could result in a pecuniary benefit for the public servant or any other person. In this case, the county's chief appraiser's personal appraisal business would come within the definition of "person" as set forth in the above cited Code Section 25-4-103(m).
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.
The county's governing authority and/or the public officer
employing the chief appraiser must determine if its chief appraiser's simultaneous
operation of a personal appraisal business has the potential of creating
suspicion among the public and reflecting unfavorably upon the county and,
if so, reduce or eliminate the suspicion.
Ronald E. Crowe Executive Director