Advisory Opinion Docket No. 00-081-E

OFFICIAL ADVISORY OPINION NO. 00-081-E September 1, 2000

This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 1, 2000, basing its approval solely on the facts and circumstances stated herein.

ISSUE 1. May a legislator or a legislator's business conduct workshops for community college or public school district personnel on location at the schools or some other location and be paid by the respective community colleges or public school districts?

ISSUE 2. May a legislator or a legislator's business contract with a community college though the college's skill tech center or workforce development office to teach personnel and personal development classes on location at businesses and factories?

ISSUE 3. May a legislator or a legislator's business be paid by a community college or any other governmental entity funded by the Legislature for the participation of the community college's employee or other governmental entity's employee in open-to-the-public classes conducted by the legislator or the legislator's business at Chambers of Commerce or other such venues?

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 25-4-103(c), (f)(i)(ii), (g)(iii)(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:

(iii) All school districts; 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."

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 starting a business of my own in personnel and personal development seminars. These are my questions:

1. May I conduct workshops for community or public school personnel (i.e. a four-hour time management course or a leadership development seminar) on location at the school or some other location and be paid by that entity?

2. If contracted by a community college, more specifically a Skill Tech Center or Workforce Development Office, may I teach personnel and personal development classes on location at businesses and factories?

3. I offer open-to-the-public classes at Chambers of Commerce and other such venues. If a community college person or any other public employee attend a workshop, may my company be paid by the public agency sending that employee?

Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.

In order to address the following Issues, it is necessary for the requestor to understand the application of Constitutional Section 109 and Code Section 25-4-105(2), both cited above, and the Mississippi Supreme Court's interpretation that the appropriation of funds is part of the contract authorization process. Therefore, the succeeding analysis of Constitutional Section 109 and Code Section 25-4-105(2) and the referenced court cases are necessary before addressing the requestor's specific issues.

Constitutional Section 109 and Code Section 25-4-105(2) prohibit a legislator during his term or for one year thereafter from being interested, directly or indirectly, in any contract funded by the Legislature of which the legislator is or was a member.⁽¹⁾

In Cassibry v. State, 404 So. 2d 1360 (1981), the State Supreme Court concluded, "Appropriation bills authorizing expenditure to Department of Public Welfare for purpose of providing for purchase of services were necessary before Department had authority to obligate State to make payment of money, and therefore 'authorized' contract between corporation, for which legislator-defendant was attorney, and the Department within meaning of statute prohibiting a legislator from being interested in a contract with the State authorized by any law passed during his term of office . . . "

In Frazier v. State, 504 So. 2d 675 (1987), the State Supreme Court considered two appropriation bills much broader and more generalized in nature than in Cassibry; however, the Court concluded the appropriations were authorizations subject to application of Constitutional Section 109.

The continuance of our state's community colleges and public school districts is now predominately dependent on funding authorized by the Legislature through the appropriation process. The reality is that both community college operations and public school district operations would be greatly reduced, if not ceased altogether, without legislative appropriations. Accordingly, the Legislature's appropriation of the primary funding to such public institutions has the effect of authorizing contracts with these public institutions paid for with funds not only directly appropriated by the Legislature but those funds supplanted by legislative appropriated funds. Clearly, these public institutions' contracts would not continue to exist whether funded directly by legislative appropriated funds or not if the institutions, themselves, were not primarily funded by the Legislature.

The question pertaining to each item is restated below for ease of reference.

Constitutional Section 109 and Code Section 25-4-105(2) will prohibit a legislator or a legislator's business from conducting workshops for community college or public school district personnel on location at the schools or some other location and being paid by the respective community colleges or public school districts.

This prohibition will apply during the period that the legislator is a member of the Legislature that appropriated funds to the respective community colleges or public school districts and for one year after the termination of the legislator's term of office.

Constitutional Section 109 and Code Section 25-4-105(2) will prohibit a legislator or a legislator's business from contracting with a community college through the college's skill tech center or workforce development office to teach personnel and personal development classes on location at businesses and factories.

Constitutional Section 109 and Code Section 25-4-105(2) will prohibit a legislator from being paid by a community college or any other governmental entity funded by the Legislature for the participation of the community college's employee or other governmental entity's employee in open-to-the-public classes conducted by the legislator or the legislator's business at Chambers of Commerce or other such venues.

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 a legislator's vote, the authorization by the Legislature nonetheless results in a contract in which the board member has a prohibited interest. [Emphasis added to bold text]

To assist the requestor in envisioning the State's public policy set forth in Constitutional Section 109 and Code Section 25-4-105(2), the Commission again refers the requestor to Frazier v. State, 504 So. 2d 675 (1987). The Mississippi Supreme Court, in Frazier, regarding Constitutional Section 109, stated:

"First, it is clear this section is to protect the government. It is not a provision to protect individual rights. It is not concerned with whether some individual or class of individuals may suffer from its enforcement. As noted in Noxubee County Hardware Co., supra, the transgression test is intended to be mechanistic and objective, and motives and intentions of persons who violate it are immaterial. Its purpose is to remove any temptation to invade its proscription. It is also, a self-executing section, and more specific than many, perhaps most, constitutional provisions. See, e. g. Bucklew v. State, 192 So. 2d 275 (Miss. 1966) (175 held self-executing); In re Initiative Petition No. 281 v. Rogers, 434 P. 2d 941 (Okla. 1967). It prohibits an individual having an interest in a contract when he as a public officer served on the official body which enabled the contract to come into being. It is simple. Being self-executing, its provisions cannot be modified or encroached upon by the Legislature. Opinion of the Justices, 251 So. 2d 755, 759 (Ala. 1971); Frost v. Johnston, 90 S. W. 2d 1045, 1048 (Ky. 1936); State v. Smith, 194 S. W. 2d 302, 305 (Mo. 1946)."

Ronald E. Crowe

Executive Director

1. An appropriation bill funding programs that allow payments under contracts in which legislators are interested are 'laws authorizing the contracts'. See Frazier v. State, 504 So. 2d 675 (1987) and Cassibry v. State, 404 So. 2d 1360 (1981).