This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 12, 1996, basing its approval solely on the facts and circumstances stated herein.

May a municipal fire department captain operate a business to service and sell fire extinguishers and employ a municipal fireman to work for him in this business when the fireman is not on duty?

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

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(d), (g)(ii), (h), (1), and (p)(i)(ii)(iii) states:

"(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:

(ii) Municipalities.

(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(1) 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.

(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."

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

The conflict of interest laws do not as such prohibit a municipal fire department captain from owning and operating a fire extinguisher business and from employing a municipal fireman during his off duty hours to work in his fire extinguisher business.

Notwithstanding the above, the municipal fire department captain should remain keenly aware of the above cited Code Section 25-4-105(1) and Code Section 25-4-101.

Code Section 25-4-105(1) prohibits a public servant from using his official position to obtain a pecuniary benefit for himself or a business with which he is associated.

Code Section 25-4-101 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.

Therefore, neither the municipal fire department captain nor the fireman/employee could in any way be involved with the municipal fire department's policies, regulations or guidelines involving the installation or inspection of fire extinguishers within the municipality.

Code Section 25-4-105(3)(a), cited above, prohibits businesses owned by or employing municipal employees from being contractors, subcontractors or vendor's with the municipality. Therefore, the municipal fire department captain's fire extinguisher business may not be a contractor, subcontractor or vendor with the municipality. [Emphasis added]

Ronald E. Crowe Executive Director