This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 4, 2001, basing its approval solely on the facts and circumstances stated herein.

May a former employee of a state department be employed by a company that currently has a three-year contract with the state department when the former employee was on the selection committee that made the decision to award the current contract to the company?

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 25-4-101 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(c), (d), (e), (f)(i)(ii), (g)(v), (h), (l), (m) 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.

(d) 'Business with which he is associated' means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.

(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.

(l) 'Pecuniary benefit' means benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain. Expenses associated with social occasions afforded public servants shall not be deemed a pecuniary benefit.

(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(1), (3)(e) and (5) states:

"(1) No public servant shall use his official position to obtain pecuniary benefit for himself other than that compensation provided for by law, or to obtain pecuniary benefit for any relative or any business with which he is associated.

(3) No public servant shall:

(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.

(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information."

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

I have worked for the Department since 1990. Before that date, I was a teacher in the Public Schools. At the present time I have approximately 29 years of service. I plan to retire in June 2001.

Several months ago when I announced my retirement I received three job offers from firms that I had dealings with over the last 12 years. I have not made a commitment to any of the companies because I wanted to be sure that I was not doing anything unethical or illegal before I made my decision.

One of the companies has a contract with us for services that started in January 2000 and will expire three years from that date. I was on the selection committee at the time the company received the last contract. This company had already had a contract with us for six years previously and did a very good job.

If I take a job with this company that does not involve any work on the present contract, will I be doing something illegal or unethical?

The Commission formally adopts Advisory Opinion No. 97-107-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)(e) is the only Ethics in Government law that specifically prohibits the actions of former public servants who were not members of a governmental body or governmental board. [Emphasis added]

Code Section 25-4-105(3)(e) prohibits a former public servant from being compensated by a business after the former public servant leaves his public employment if the former public servant is compensated for performing services related to "any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated" during the former public servant's public employment.

Although the terms "any case, decision, proceeding or application" do not specifically include the word "contract," the terms are sufficiently broad to include a contract in the Code Section 25-4-105(3)(e) prohibition.

In response to the requestor's specific inquiry about taking "a job with this company that does not involve any work on the present contract," Code Section 25-4-105(3)(e) does not prohibit a former public servant from being compensated for providing services to a business that contracts and/or contracted with the former public servant's governmental authority, unless the compensation for performing services is related to "any case, decision, proceeding or application" with respect to which the former public servant was directly concerned or in which he personally participated.

Therefore, Code Section 25-4-105(3)(e) does not prohibit the requestor from being employed by the company currently contracting with the state department. However, the requestor as a former employee of the state department is prohibited by Code Section 25-4-105(3)(e) from being compensated for employment with or services performed for the company in relation to its current contract with the state department since the requestor was on the selection committee that made the decision to award the current contract to the company. [Emphasis added to bold text]

Notwithstanding the above, the requestor is also referred to Code Section 25-4-105(1) and (5), cited above.

Code Section 25-4-105(1) prohibits public servants from using their official positions to obtain a pecuniary benefit for themselves, their relatives or businesses with which they are associated.

The circumstance being considered here clearly does not concern the relatives of a public servant and therefore is not at issue.

A "business with which he is associated," as defined in Code Section 25-4-103(d), clearly envisions a public servant during his public employment being associated with a business, either through employment, ownership or income. The requestor appears from the facts presented to not have had a previous association with the company. Therefore, the "business with which he is associated" definition is not applicable in this instance.

Regarding Code Section 25-4-105(1), the sole question would be whether the requestor used his or her state department position to obtain a pecuniary benefit for himself or herself. The pecuniary benefit would be his or her employment with the company.

To "use his (or her) official position," a public servant must have some belief or expectation that his or her activities or inactivities would lead to the pecuniary benefit. However, it is not required that his or her activities or inactivities constitute a misuse of his official position to violate Code Section 25-4-105(1).

The requestor's service on the selection committee is not enough, by itself, to result in a violation of Code Section 25-4-105(1), unless the requestor had a reasonable expectation of benefitting from his or her actions on the selection committee. There is no indication from the available facts that the requestor had such a reasonable expectation of benefitting in this instance.

Code Section 25-4-105(5) prohibits public servants from intentionally using nonpublic information obtained by reason of their public employment that could result in a pecuniary benefit to themselves, their relatives or any other person. The company currently contracting with the state department is within the definition of "person" set forth in Code Section 25-4-103(m).

To support a violation of Code Section 25-4-105(5), it would be necessary to demonstrate that the requestor intentionally used nonpublic information to obtain future employment with the company. No facts have been presented to show or infer that nonpublic information was involved in this instance.

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.

A former state employee accepting employment with a contractor of his former state agency is certainly a circumstance with the potential of creating suspicion among the public and reflecting unfavorably upon the state agency. This is especially true when the former state employee had supervisory authority or personal responsibility over the state agency's contract with the contractor.

In this particular instance, the requestor is advised to totally and completely avoid participating in any discretionary decisions or actions by the state department that could provide a benefit to any company the requestor is considering accepting employment with after terminating employment with the state department in order to fully and completely comply with the public policy mandate set forth in Code Section 25-4-101.
 

Ronald E. Crowe

Executive Director