This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 7, 2001, basing its approval solely on the facts and circumstances stated herein.

May a state agency contract with its former executive director to provide technical consulting assistance in the unexpected and top priority transition of certain facilities from contract management to state operation?

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 25-4-103(f)(i)(ii), (g)(v), (h) and (p)(i)(ii)(iii) states:
 

"(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.

(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(3)(a)(e) states:
 

"(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."

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

The Board desires to enter into an independent consultant contract with its former Executive Director to provide technical consulting assistance in the unexpected and top priority transition of certain facilities from contract management operation to state operation within the next 90 to 150 days. This individual has served as Executive Director of the Board since 1993 and earlier tendered his resignation effective within the near future to take a position outside of government.

The former Executive Director has technical expertise and long term experience relating to operation of these facilities, he has valuable contacts in state and federal government which would be invaluable in assisting the transition of the facilities. His assistance is desperately needed at this time.

We propose to enter into an independent consultant contract with the former Executive Director from date of approval through June 30, 2002 at the rate of $1,200.00 per month, plus rate travel allowance for necessary business travel for the Board.

The Commission formally adopts Advisory Opinion No. 01-084-E in response to this request and by attachment incorporates it into this opinion.

Code Section 25-4-105(3)(a), cited above, prohibits a public servant, including a state employee, from being a contractor with the public servant's governmental entity.

Therefore, Code Section 25-4-105(3)(a) will prohibit the state agency from contracting with the executive director prior to his termination from the state agency.

However, as set forth in the attached advisory opinion, Code Section 25-4-105(3)(a) will not prohibit the state agency from contracting with its former employee. This would include the state agency's former executive director in this instance.

Code Section 25-4-105(3)(e), cited above, 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 person or 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.

However, Code Section 25-4-105(3)(e) will not prohibit the state agency from contracting individually with its former executive director to provide technical consulting assistance as described in the requestor's letter.

The requestor should contact the State Attorney General's Office about whether any state laws outside of the state's conflict of interest laws would prohibit the subject contract.

Also, the state agency needs to contact the State Personnel Board to determine if the proposed consulting contract with the former executive director complies with that Board's rules and regulations.

In addition, the state agency needs to contact the Public Employees' Retirement System to confirm that its contract with its former executive director will not adversely affect his state retirement if the former executive director is eligible for state retirement.

Ronald E. Crowe

Executive Director