This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 3, 1996, basing its approval solely on the facts and circumstances stated herein.

May a county employ the son of a county supervisor as a road department employee if the county is operating under a county-wide system of road administration?

    Your opinion request to the Office of the Attorney General dated April 11, 1996, was referred by that Office to the Mississippi Ethics Commission on April 16, 1996, as your request involves the above issues that concern the Mississippi conflict of interest laws.

    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:

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 (f)(i)(ii), (g)(i), (h), (1), (m), (p)(i)(ii)(iii) and (q) states:

"(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.

(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.

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

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

(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.

(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.

As attorney for the Board of Supervisors, I have been requested to get an official opinion concerning certain hiring practices. The County is operating under the County Unit System and the Road Manager is desirous of hiring a heavy equipment operator that is the son of a member of the Board of Supervisors. This individual has in the past worked for the County in that capacity and also as a road manager. However, at the time of his father's election, he was not a County employee.

I have in my possession Opinion No.90-0094 which addresses the issue insofar as it pertains to Section 25-1-53. However, that opinion   specifically reserves any comment with respect to the Ethics in Government Act (Section 25-4-105, et seq.) or Section 109 of the Constitution.

I would appreciate your addressing the above situation with regard to the Ethics in Government Act and the State Constitution.

    The Commission formally adopts Advisory Opinion No. 96-047-E in response to this request and by attachment incorporates it into this opinion.

    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 county supervisor's son's employment as a county road department employee is prohibited by Constitutional Section 109 and Code Section 25-4-105(2), both cited above, unless the son is totally financially independent from the supervisor.

    If the son is totally financially independent from the supervisor, then he may be employed by the county road department subject to the restrictions and prohibitions discussed in the attached opinion.
 
 
 

Ronald E. Crowe Executive Director