This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on August 3, 2001, basing its approval solely on the facts and circumstances stated herein.

May a city contract with a local business for the maintenance and repair of the city's vehicles when a city alderman is one of the owners of the business?

Your opinion request to the Office of the Attorney General dated July 16, 2001, was referred by that Office to the Mississippi Ethics Commission on July 19, 2001, as your request involves the above issue that concern the Mississippi conflict of interest laws.

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)(ii), (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) 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.

(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 in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of this opinion.

I am writing on behalf of the Mayor and Board of Aldermen of the City. As City Attorney for the City, I have been instructed to request an official opinion from your office regarding the facts hereafter set forth.

For a number of years, the City has contracted services from a local business for the maintenance and repair of all City vehicles. There is no other local business that can provide these services. During the June 6, 2001 elections, one of the owners of the business in question was elected to the position of alderman for the City. This alderman was also selected by the Board to serve as Vice-Mayor for the City.

The question that is raised is whether the City can continue to contract with the local business, since it would otherwise have to go to another municipality ten (10) miles away to get the needed services performed. Relevant provisions of the law which cause concern are Section 31-39-1, and Section 97-11-19 of the Mississippi Code of 1972.

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 official from having an interest, direct or indirect, in a contract authorized by his board during his term and for one year thereafter.⁽¹⁾

The prohibitions imposed by Constitutional Section 109 and Code Section 25-4-105(2) absolutely prohibit a local governmental entity's board member, including a municipal board member, from contracting with his governmental entity or the board member's business contracting with his governmental entity during the board member's term and for one year thereafter. [Emphasis added to bold text]

Specifically, 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)." [Emphasis added to bold text]

As stated above by the Court, Constitutional Section 109 is self-executing and being self-executing, its provisions cannot be modified or encroached upon by the Legislature.

Therefore, Constitutional Section 109's absolute prohibition to a local governmental entity's board member, including a municipal board member, contracting with his governmental entity or the board member's business contracting with his governmental entity is not limited by any exceptions, including an alderman's business being the only one within the boundaries of the city that provide the services sought by the city.

In addition, there are no statutory exceptions to the absolute prohibition imposed by Code Section 25-4-105(2).

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) absolutely prohibit the City from contracting for the maintenance and repair of its vehicles with the business in which the alderman has an ownership interest despite the fact that no other business located within the City can provide these services. This prohibition will apply during the alderman's term and for one year thereafter.

The requestor is cautioned to advise the alderman 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.

Ronald E. Crowe

Executive Director

1. See Frazier v. State, 504 So. 2d 675 (1987), Golding v. Salter, 234 Miss. 567 (1958) and Noxubee County Hardware Company v. City of Macon, 43 So. 304 (1910).