April 5, 2002
This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on April 5, 2002, basing its approval solely on the facts and circumstances stated herein.
May a state employee and/or his business train other governmental entities outside of the boundaries of the State of Mississippi in the use and operation of a federal computer program and charge a fee for such service?
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:
Code Section 25-4-103(b),
(c), (d), (e), (f)(i)(ii), (g)(v), (h), (k)(i)(ii), (l) and (p)(i)(ii)(iii)
states:
“(b) “Benefit” means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.(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 nonprofit 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.
(e) “Compensation” mean money or thing of value received, or to be received, from any person for services rendered.
(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:
(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.(k) “Material financial interest” means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other.Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:
(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).
(l) “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.”
Code Section 25-4-105(1),
(3)(a) 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.(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.
(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.
I am currently employed with a state agency as a program manager.I am considering starting a small consulting company (part-time).I am writing to clarify an issue of Conflict of Interests with my employer.I run specific computer software and I will train any Government entity within the State of MS that requests it as part of job with the state agency.The software is provided through a federal agency at no charge (it is free).The software requires a special information system to run on.I would like to conduct training to other government entities outside the State of MS and charge a small fee.I am not going to charge any Government Agency or Entity within MS because it is part of my job to do this anyway while I am with the state agency.Is there a problem or a conflict of interest if I conduct training outside the state as long as I use my own equipment, my own leave time to do the training, my own office supplies and software?The only thing that I intend to use from the state agency is knowledge and experience.
In addition to the above facts the requestor provided the following additional facts to the Commission’s staff.The federal computer program is part of the public domain and is therefore available to any interested public or private party.The requestor was paid as an employee of the state agency to attend a basic training course on the federal computer program held by the federal government.
The Commission formally adopts Advisory Opinion No. 01-113-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.
Code Section 25-4-105(1), cited above, prohibits a public servant, including a state employee, from using his official position to obtain a pecuniary benefit for himself or a business with which he is associated.
Code Section 25-4-103(c), cited above, defines a business as 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 nonprofit corporation or other such entity, association or organization receiving public funds.
Regardless how the state employee sets-up his business, including it being asole proprietorship or the state employee being a self-employed individual, it will be a business with which the state employee is associated as defined in the above cited Code Section 25-4-103(d).
Therefore, the state employee and/or his business may not benefit from payments for training other non-state governmental entities in the operation of the federal computer program if he uses his official position with the state agency to set-up, conduct and/or provide the training services, as to do so would violate Code Section 25-4-105(1).
As did the circumstance in the attached advisory opinion, the requestor presents a unique circumstance as he obtained his basic knowledge in this particular area at some cost and the direction of his state agency employer as he is required to have this knowledge in order to hold [or perform] his public employment position [or duties].
Clearly, the state employee obtained his initial training in the federal computer program at the expense of the state agency as it paid him to attend the basic training program held by the federal government on the operation of the federal computer program.
As in the circumstance addressed in the attached advisory opinion, there is, however, no evidence that the state employee used his official position with the state agency to obtain the basic training in the operation of the federal computer program. The requestor’s use of his official position is a necessary element to violate Code Section 25-4-105(1). There are no mandates in state law requiring the requestor as a state employee to obtain the subject federal training.In fact, a decision as to whether a state employee will receivetraining in a particular area at the cost of his state agency employer is solely within the purview and authority of the state agency’s executive director or governing body.
Based solely on the specific facts presented herein, Code Section 25-4-105(1) will not prevent the requestor, as a state employee, and/or his business from training other governmental entities outside of the boundaries of the State of Mississippi in the use and operation of the federal computer program and charging a fee for such service.This is true even though the requestor in question obtained his basic training in the operation of the federal computer program at some cost and at the direction of his state agency employer as there is no evidence that the requestor used his position to obtain the training for the reasons stated above.
The requestor is advised that he will be in violation of Code Section 25-4-105(1) should he use the state agency’s equipment, facilities or other resources to provide the training services to the other non-state governmental entities.Specifically, the requestor may not use training materials and resources to provide private training services that were paid for by the state agency or which he acquired in the federal training class he attended at the direction of and as a paid employee of the state agency.Also, the requestor will violate Code Section 25-4-105(1) should he provide the training services when he has not taken personal leave from his state employment position.
The requestor is also cautioned to remain keenly aware of the following provisions of the state conflict of interest laws discussed below.
Code Section 25-4-105(3)(a), cited above, prohibits a public servant from being a contractor, subcontractor or vendor with the governmental entity employing him or from having a material financial interest in a business that is a contractor, subcontractor or vendor with the governmental entity employing him.
Therefore, Code Section 25-4-105(3)(a) will prohibit the requestor and /or his business from providing private training services to the state and especially his state agency employer.
Code Section 25-4-105(5), cited above, prohibits a public servant from using or disclosing nonpublic information gained by reason of the public servant’s official employment that in any way could result in a pecuniary benefit to the public servant or any other person.The definition of “person” set forth in Code Section 25-4-103(m), cited above, would include the non-state governmental entities contracting with the requestor and/or his business.
However, it is the Commission’s understanding from the facts provided by the requestor that nonpublic information is not involved in this instance as the federal computer program is part of the public domain and available to any interested party, public or private.
The requestor should be advised, the conflict of interest laws do not overrule specific agency policies and procedures which might be more restrictive than the conflict of interest laws.Therefore, the requestor should inquire of his agency to ensure there are no policies or procedures prohibiting his training other governmental entities outside of the boundaries of the State of Mississippi in the use and operation of a federal computer program and charging a fee for such service.
Scott Rankin