This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on August 15, 1997, basing its approval solely on the facts and circumstances stated herein.

May an alderman's law firm provide legal services to a planning and development district when the alderman's city provides funding to the planning and development district?

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 25-4-103 (c), (f)(i)(ii), (g)(ii)(v), (h), and (p)(i)(ii)(iii) states:

"(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.

(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:
 
(ii) Municipalities; and

(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.

(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 (2) states:

"(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."

The Commission formally adopts Advisory Opinion No. 92-203-ER 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.

In the attached advisory opinion, planning and development districts were determined to be "instruments of government" for purposes of the state conflict of interest laws.

Specifically, the attached advisory opinion states:

"PDD's are unique and are not clearly defined public entities. However, the Commission finds the PDD's are clearly instruments of government and are thus part of government under Section 25-4-103 (g)(v).

The Ethics laws concern private interests, not competing interests of two or more public entities or instruments. As the various governmental bodies are public bodies, and the PDD for purposes of this opinion is an instrument of government, there appears to be only competing public interests.

The government officials who serve on the PDD boards are not paid for their service. Their fiduciary responsibility as PDD board members concern only a public interest." [Emphasis added to bold text]

In this instance, the planning and development district's payment of fees to the alderman's law firm makes the alderman's interest one of a personal, pecuniary nature and not one of a public interest nature.

The State Supreme Court has said that the appropriation of funds is a necessary part of the contract authorization process. ⁽¹⁾

The city's appropriation to the planning and development district assists the planning and development district in sustaining its contracts and expenditures, including those contracts with and expenditures to the alderman's law firm.

Therefore, Constitutional Section 109 and Code Section 25-4-105 (2), both cited above, prohibit the alderman's law firm from contracting with the planning and development district when the alderman's city is providing funding to the planning and development district.

The requestor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105 (2). Even without the board member's vote, the authorization by the member's board nonetheless results in a contract in which the board member has a prohibited interest.
 

Ronald E. Crowe
Executive Director