Issue 1. May the district attorney's office rent office space from one of his assistant district attorneys?
Issue 2. May an assistant district attorney transfer office space he owns to his father and his father rent the office space to the district attorney's office?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:
"(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:
Pertinent facts and circumstances in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of this opinion.(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.(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.
(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) and (3)(a)(d) 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.
(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.(d) Perform any service for any compensation during his term of office or employment by which he attempts to influence a decision of the authority of the governmental entity of which he is a member."
The Commission formally adopts Advisory Opinion No. 93-093-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
Issue 1. Code Section 25-4-105(3)(a), cited above, prohibits the assistant district attorney from being a contractor, subcontractor or vendor with the district attorney's office. This would include leasing office space to the district attorney's office.
Code Section 25-4-105(4)(d)(i) provides an exception to the prohibition set forth in Code Section 25-4-105(3)(a). The exception is "where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchasing laws." The term "goods or services as used in this section does not include the selling, leasing or renting of real property.
Issue 2. Code Section 25-4-105(1), cited above, prohibits the assistant district attorney from using his position to obtain a pecuniary benefit for himself and his relatives. Code Section 25-4-103(q), cited above, includes parent in the definition of "relative" for purposes of the conflict of interest laws.
The circumstances the requestor presents where the assistant district attorney deeds his real property to his father so as to lease it to the district attorney's office is prohibited by Code Section 25-4-105(1).
Ronald E. Crowe Executive Director