Mec 1996 June Adv Opi no 96-070-E

OFFICIAL ADVISORY OPINION NO. 96-070-E June 7, 1996 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 a justice court judge contract to serve as an auctioneer for a joint auction held by a municipality and the county that he is elected to serve?

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 entities' internal rules and regulations.

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

Code Section 254-103(a), (f)(i)(ii), (g)(i)(ii)(iii)(iv)(v), (h) and (p)(i)(ii)(iii) states:

"(a) 'Authority' means any component unit of a governmental entity.

(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;

(ii) Municipalities;

(iii) All school districts;

(iv) All courts; and

(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.

(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."

Code Section 25-4-105(3)(a) and (4)(d) states:

"(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.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(d) May be a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which is a contractor, sub contractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent: (i) where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws; or (ii) where the contractual relationship involves the further research, development, testing, promotion or merchandising of an intellectual property created by the public servant."

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

In following our telephone conversation, I would like an opinion concerning my ability to hold an auction for surplus property in a joint venture, whereby the County and the City are selling all of their excess or surplus property at one auction, which would be beneficial to the city and county governments.

As you know, Mississippi Code Section 25-4-1 OS (subparagraph (3 [a]) is controlling. Justice Court Judges in Mississippi are part-time elected officials and not under the supervision of any member of the Board of Supervisors or City Council. Further, we are members of the Judicial Branch of Government and report to no one and are under the supervision of no one. Any contract with the City or the County is totally out of my control as a Justice Court Judge and I have no vote nor ability to influence beyond that of an ordinary citizen.

Therefore, I would like an opinion as to whether or not I, as a Justice Court Judge, am allowed to perform my part-time occupation as an auctioneer (by performing an auction or bidding on an auction on or for the joint venture) between the City and the County.

The Commission formally adopts Advisory Opinions No. 93-231-E and No. 93-181-E in response to this request and by attachment incorporates them into this opinion.

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

The Commission in the attached opinions found that a justice court judge is a public officer of the county he or she serves and is a part of the county "governmental entity" pursuant to Code Section 25-4-105(h). Therefore, a justice court judge is prohibited by Code Section 25-4-105(3)(a), cited above, from being a contractor, subcontractor or vendor with the county government of which he or she is an officer.

Based on the above, the requestor is prohibited from contracting to serve as an auctioneer for
a joint venture of the county and city to sell surplus property as the county would be a party to his contract in violation of Code Section 25-4-105(3)(a).

The exception set forth in the above cited Code Section 25-4-105(4)(d)(i) does not limit a good or service "reasonably available from two (2) or fewer commercial sources" to a specific geographical area such as a county. An auctioneer service in an adjourning county or an auctioneer service willing to conduct an auction in the county clearly would be a reasonably available commercial source.

The requestor may contract to provide auctioneer services solely to the city. This is based on the fact that a justice court judge is not an officer of the city.

Ronald F. Crowe Executive Director