This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 6, 2001, basing its approval solely on the facts and circumstances stated herein.

May a county supervisor be employed by a nonprofit corporation when the county the supervisor serves entered into a ten year lease contract with the nonprofit corporation during his previous term of 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."

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), (f)(i)(ii), (g)(i), (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:

(ii) Counties.

(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."

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.

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

Constitutional Section 109, cited above, 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."

In its deliberation of the prohibition imposed by Constitutional Section 109 in Frazier v. State of Mississippi, 504 So. 2d 675 (1987), the Mississippi Supreme Court stated:

"This section prohibits any public officer or member of the legislature from:

(a) having any direct or indirect interest in any contract

(b) with the state or any political subdivision

(c) executed during his term of office or one year thereafter, and

(d) authorized by any law, or order of any board of which he was a member."

In this instance, Constitutional Section 109 prohibits the requestor as a county supervisor from having an interest as the not-for-profit corporation's employed administrator in the county's lease contract with the nonprofit corporation as this lease contract between the county and the nonprofit corporation was executed during the supervisor's 1996-1999 term of office by an order of the county board of supervisors.

The county supervisor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109. 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.

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 county supervisor accepting employment with a not-for-profit corporation such as the one addressed herein is certainly a circumstance that has the potential of creating suspicion among the public and reflecting unfavorably upon the county government.

The reason a county supervisor's employment by a not-for-profit corporation such as the one addressed herein is contrary to the public policy set forth in Code Section 25-4-101 is because local governments, such as a county, have the authority to assist with social programs in many different ways. The county supervisor's employment by the not-for-profit corporation closes an important and valuable avenue of assistance to the not-for-profit corporation and those benefitting from its programs. Therefore, such a circumstance must be avoided to fully comply with the public policy mandate set forth in Code Section 25-4-101.

Also, a county supervisor being employed by a not-for profit corporation when the county has a ten year lease contract with the not-for-profit corporation is a circumstance that will create suspicion among the public and reflect unfavorably upon the county. Therefore, this is another reason that such a circumstance must be avoided to fully comply with the public policy mandate set forth in Code Section 25-4-101.
 

Ronald E. Crowe
Executive Director