This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on January 7, 2000, basing its approval solely on the facts and circumstances stated herein.
 

May a former public service commissioner be appointed by the Public Service Commission as an arbitrator after leaving office?

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.”

“(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.

(i) ‘Income’ means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.

(m) ‘Person’ means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.

(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) and (3)(e) 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.

(3) No public servant shall:

(e) Perform any service for any compensation for any person or business after termination of his office or employment is relation to any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated during the period of his service or employment.”

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 currently serving as a Public Service Commissioner.  On December 31, 1999, I will retire from office.

I have a desire to become an arbitrator in the State of Mississippi.  This position would be appointed by the Public Service Commission; however, all salaries (fees) would be paid by the companies, not the Commission.

Also, the arbitrators do not appear before or participate in Commission hearings.  Their findings are submitted to the Commission and the respective companies.

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), both cited above, prohibit a public officer, including a public service commissioner,  from having an interest, direct or indirect, in a contract authorized by a board of which the public officer was a member during his term and for one year thereafter.

It is the Commission’s opinion that the Public Service Commission’s selection of an arbitrator does in fact result in a contractual arrangement as anticipated by Constitutional Section 109 and Code Section 25-4-105(2).  Clearly, there is an agreement between the Public Service Commission and the arbitrator, as well as the companies, that the arbitration process be carried out in a responsible and lawful manner.  This is true even though the actual compensation paid the arbitrator is from the companies subject to the Public Service Commission’s purview.

Also, it is clear the Public Service Commission plays the crucial part in the contract authorization process as anticipated by Constitutional Section 109 and Code Section 25-4-105(2) since it is the entity actually selecting the arbitrator.

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) absolutely prohibit a former public service commissioner being selected as an arbitrator by the Public Service Commission within one year of the end of his term of office. [Emphasis added to bold text]

Code Section 25-4-105(3)(e), cited above, prohibits a former state public servant, including a former public service commissioner, from performing any service for any compensation for any person or business after termination of his office or employment is relation to any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated during the period of his service or employment.

Clearly, an arbitrator selected by the Public Service Commission is performing a service for compensation for the Public Service Commission as well as the companies under the Public Service Commission’s purview.

It is obvious that the companies are included within the above definitions of “business” and “person” respectively set forth above in Code Section 25-4-103(c) and (m).  Also in this instance, the Public Service Commission is included in the definition of “person” set forth in Code Section 25-4-103(m) by way of the language “and where appropriate a governmental entity” included therein.

Therefore, a former public service commissioner is prohibited from serving as an arbitrator selected by the Public Service Commission when the arbitration concerns any case, decision, proceeding or application with respect to which the former public service commissioner was directly concerned or in which he personally participated during his service as a public service commissioner.

The requestor is advised that the prohibition imposed by Code Section 25-4-105(3)(e) is not restricted or limited to a specific time period as are the prohibitions imposed by Constitutional Section 109 and Code Section 25-4-105(2).
 
 

Ronald E. Crowe
Executive Director