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 5, 2001, basing its approval solely on the facts and circumstances stated herein.

May a member of a city's park advisory board resign his position on the park advisory board and immediately thereafter sell sporting goods to the city for use in its parks and recreation department through a sporting goods store which he owns?

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(a), (c), (f)(i)(ii), (g)(ii), (h), (i), (k)(i)(ii) 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.

(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.

(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.

(k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).

(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), (3)(a)(e) and (4)(d) 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:

(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.

(e) Perform any service for any compensation for any person or business after termination of his office or employment in 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.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(d) May be a contractor, subcontractor or vendor with any 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, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent: (i) where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws; or (ii) where the contractual relationship involves the further research, development, testing, promotion or merchandising of an intellectual property created by the public servant."

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. 97-149-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.

As set forth in the attached advisory opinion, advisory board members, including park advisory board members, are public servants of the city they serve under the definitions set forth in the above cited Code Section 25-4-103(p)(i)(ii). They are appointed officials of the city government and they are officers and agents sitting on boards that are created by city ordinances and that are funded by city funds.

The advisory board members are "public servants" of the city and therefore are prohibited from being contractors, subcontractors or vendors with the city or from having material financial interests in any businesses that are contractors, subcontractors or vendors with the city. Such relationships with the city violate the above cited Code Section 25-4-105(3)(a).
 
 

However, an advisory board member may avoid a violation of Code Section 25-4-105(3)(a) by resigning his or her position on the city advisory board. A business in which the advisory board member has a material financial interest may sell goods and services to the city after the effective date of the advisory board member's resignation.

The requestor advises in the attached request letter that "none of the members of the Park Advisory Board have any part in the selection of equipment, uniforms or other purchases."

The requestor is cautioned that if the Park Advisory Board did have authority to select equipment, uniforms or other purchases, even if the city's governing board authorized the actual purchase, then certain state conflict of interest laws would place restrictions upon the Park Advisory Board's members after their effective resignation date. These state conflict of interest laws are discussed below.

Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a member of a governmental board from having an interest, direct or indirect, in any contract authorized by that board during his or her term and for one year thereafter.

Therefore, should a city's park board have the authority to recommend or approve the recreation equipment purchased by the city's governing board, then its members would be prohibited not only during their term but for one year thereafter from having an interest, direct or indirect, in the city's contract to purchase the recreation equipment.

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 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.

Code Section 25-4-105(3)(e), cited above, prohibits a public servant from performing any service for any compensation for any person or business after termination of his office or employment in 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.

Therefore, should a city's park board have the authority to recommend or approve the recreation equipment purchased by the city's governing board, then its members would be prohibited after their termination from the park board from receiving compensation from their sporting goods businesses' selling recreation equipment to the city if they were directly concerned with or personally participated in the recommendation or approval decision of the city's park board relating to that specific recreation equipment being purchased by the city.
 
 
 
 

Ronald E. Crowe

Executive Director