This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 6, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May a part-time deputy sheriff who works without compensation also sell gravel to the same county after providing the lowest and best of three competitive bids and otherwise complying with the purchase 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:

Code Section 25-4-103(a), (e), (f)(i)(ii), (g)(i), (h), (k)(i)(ii) and (p)(i)(ii)(iii) states:
 

“(a) ‘Authority’ means any component unit of a governmental entity.

(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:

(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.

(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).

(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)(b)(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:

(b) May be a contractor or vendor with any authority of the governmental entity other than the 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 he is a member, officer, employee or agent where such contract is let to the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received or where the goods, services or property involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws.

(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, subcontractor 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.
 

I would like you and your board to please consider letting an individual return to work for me as deputy.  I have a small staff and some of my men are serving in Iraq.

I believe that my office is a separate entity from the Board of Supervisors, they only set my budget, they do not influence my hiring or set any salaries.

This individual has a contract to sell gravel to the Supervisors.  Given the status of our county and country related to Homeland Security, I would hope that you would agree with me.

If this individual can not be paid to work, then at least can he volunteer his time to my office.

The Commission formally adopts Advisory Opinions No. 92-032-E and 02-050-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.

This opinion request references a situation in which the Commission staff provided advice to a third party regarding a potential violation of the Ethics in Government laws. A part-time deputy sheriff wished to know whether he could sell gravel to the board of supervisors of the same county after providing the lowest and best of three competitive bids and otherwise complying with the purchase laws, under the provisions of Code Section 25-4-105(4)(b), cited above.

The staff informed him that, based on prior opinions of this Commission, the sheriff’s office and the board of supervisors are part of the same authority of county government. See attached Advisory Opinion No. 02-050-E holding the chancery clerk’s office and sheriff’s office are within the same authority. That interpretation means the part-time deputy sheriff could only sell gravel to the board of supervisors if he is one of two or fewer reasonably available commercial sources of gravel. See Code Section 25-4-105(4)(d), cited above. In this instance, the two-or-fewer-sources exception cannot apply since the county reportedly received at least three separate bids.

Based on that interpretation by the Commission staff, the part-time deputy sheriff elected to resign his position with the sheriff’s office to avoid a conflict. The sheriff requesting this opinion wishes to know whether the part-time deputy can continue working in his office for no compensation while also continuing to provide gravel to the board of supervisors.

If a part-time deputy sheriff by receiving no “compensation” as defined in Code Section 25-4-103(e) above, for his work with the sheriff’s office is, in part, an auxiliary deputy, receiving no benefits  from  the county  including, but  not  limited  to, salary,  per diem,  expenses or insurance coverage, etc., then, in conformity with the attached Advisory Opinion No. 92-032-E, the Commission finds no conflict will arise from the deputy selling gravel to the county under the specific circumstances set forth above.
 
 

Scott Rankin
Executive Director