This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on October 1, 1999, basing its approval solely on the facts and circumstances stated herein.

May a current employee of one state governmental authority be hired as an independent contractor by another state governmental authority?

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), (c), (e), (f)(ii), (g)(v), (h) and (p)(i)(ii)(iii) states:

"(a) 'Authority' means any component unit of a governmental entity.

(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.

(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.

(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)(h) 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 is 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 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.

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee."

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.

The Commission formally adopts Advisory Opinion No. 98-120-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 (3)(a), cited above, prohibits an employee of one state governmental entity from being a contractor, subcontractor or vendor with the state. Therefore, the employee in question would be prohibited by Code Section 25-4-105 (3)(a) from being a contractor, subcontractor or vendor with his former employing state authority as he is currently employed by his new employing state governmental authority.

Notwithstanding the above, there are two exceptions to the prohibition set forth in Code Section 25-4-105 (3)(a) that could be applicable in this particular instance.

The first exception is found in Code Section 25-4-105 (4)(b), cited above, and is addressed in the attached Advisory Opinions No. 98-120-E and No. 95-124-E. See 98-120-E, at pg. 4 and 95-124-E, Issue 1a. at pgs. 7-8.

The exception set forth in Code Section 25-4-105 (4)(b) applies when a current state employee desires to be a contractor or vendor with another state governmental authority other than his employing state governmental authority and his contract will not be one that places him in an employee status with the other state governmental authority.

Code Section 25-4-105 (4)(b) will allow the state employee in question to be a contractor/vendor with the requestor's state governmental authority to provide the assistance in the areas of personnel management, structure and recruitment only if his contract is let to him as the lowest and best bidder after competitive bidding and three (3) or more legitimate bids were received or where the services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchasing laws.

The second exception is found in Code Section 25-4-105 (4)(h), cited above, and is addressed in the attached Advisory Opinions No. 98-120-E and No. 97-001-E. See 98-120-E, at pgs. 4-5 and 97-001-E, pgs. 3-4.

The exception set forth in Code Section 25-4-105 (4)(h) applies when a current state employee is employed by and/or compensated by a state governmental authority other than his current employing state governmental authority.

Code Section 25-4-103 (e), cited above, defines compensation as "money received for services rendered."

Code Section 25-4-105 (4)(h) will allow the state employee in question to be employed and/or compensated by the requestor's state governmental authority to provide the assistance in the areas of personnel management, structure and recruitment if either a W4 form - "Employee's Withholding Allowance Certificate" or a W9 form - "Requestor for Taxpayer Identification Number and Certification" will be required to be filed as discussed in the attached Advisory Opinions No. 98-120-E and No. 97-001-E.
 
 
Ronald E. Crowe
Executive Director