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 4, 2000, basing its approval solely on the facts and circumstances stated herein.

May a former state legislator within one year of his last term in the Legislature contract with a state university to serve as a facilitator of a lecture series if the former legislator is paid by the Foundation?

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:

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 25-4-101 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(f)(i)(ii), (g)(v), (h) and (p)(i)(ii)(iii) states:

"(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(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.

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.

Through this means I am requesting a ruling by the Mississippi Ethics Commission regarding the involvement and participation of a former state legislator with the University.

The University has proposed to establish a lecture series and to solicit the services of the former state legislator as facilitator of the series. The Foundation is prepared to provide compensation to the former state legislator. Such compensation would occur independent of the university.

The Commission formally adopts Advisory Opinion No. 97-040-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.

Constitutional Section 109 and Code Section 25-4-105(2), cited above, absolutely prohibit a legislator from having an interest, direct or indirect, in any contract authorized by the Legislature during his term of office and also absolutely prohibit a former legislator from having an interest, direct or indirect, in any contract authorized by the Legislature within one year of the end of his term of office.

It is important to understand, that what a legislator is prohibited from doing during his term because of the prohibitions imposed by Constitutional Section 109 and Code Section 25-4-105(2) he is also equally prohibited from doing that same thing within one year after his term.

The Commission has clearly stated in the attached advisory opinions, that a legislator may not contract with a community college and be paid with local funds nor may a legislator have an interest in a contract, i. e., a federal grant, with a university and be paid with federal funds disbursed directly to the university by the federal government.

The decisions in the prior opinions were based on the reality that both the community college's operation and the university's operation would be greatly reduced, if not ceased altogether, without legislative appropriations. Accordingly, the Legislature's appropriation of the primary funding to such institutions has the effect of authorizing contracts with the institutions paid for with funds not directly appropriated by the Legislature as such contracts would obviously not exist or continue if the institutions, themselves, were not primarily funded by the Legislature.

In addition the attached opinions incorporated language from Frazier v. State, ex rel Pittman, 504 So. 2d 675 (Miss. 1987), that concerned the Mississippi Supreme Court's view of the argument by legislators that it carried Constitutional Section 109 to far to prohibit their being compensated by a state supported university. In Frazier, the Mississippi Supreme Court said, "This argument ignores the obvious. Our colleges and universities are virtual total dependents of the Legislative branch of Government."

A legislator or former legislator contracting with a state university and being paid with funds from the foundation established to support the state university is sufficiently similar to the circumstances set forth in the attached advisory opinions to find that such a contract with a legislator or former legislator is also prohibited by Constitutional Section 109 and Code Section 25-4-105(2).

The requestor's statement that "such compensation would occur independent of the university" is perplexing considering that the former legislator's contract will provide for services to the state university and the state university and its foundation have obviously made arrangements to compensate the former legislator for his services to the university.

The issue presented by the requestor also must be viewed as it relates to Code Section 25-4-101, set forth above. This code section 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.

Clearly, a former legislator contracting under any circumstances with a state university within one year of the end of the former legislator's term of office is a circumstance that can be expected to create suspicion among the public and reflecting unfavorably upon both the state university and the Legislature.

Therefore, such a circumstance should be avoided in order to fully comply with the public policy and public trust mandates set forth in Code Section 25-4-101.
 
 
 
 

Ronald E. Crowe

Executive Director