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 bureau manager of one state agency be employed by a private firm to assist the private firm in performing its contractual obligations to another state agency?

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(a), (c), (f)(i)(ii), (g)(v), (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

(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.

(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(3)(a) and (4)(b) 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.

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

(b) May be a contractor or vendor with any authority of the governmental entity other than the 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 he is a member, officer, employee or agent where such contract is let to the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received or where the goods, services or property involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws."

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

Earlier this year, I was appointed to be the Director of the Commission for Mississippi. This position is classified as a Bureau Manager level position under State Agency A. A private firm that is submitting a proposal to State Agency B has contacted me to assist them in performing the contract with State Agency B. Therefore, I am requesting the Mississippi Ethics Commission to render a decision regarding whether my participation in this search would create a conflict of interest.

I will receive compensation for the consulting time I dedicate to this project. However, the time I would dedicate to this project would not conflict with my regular work schedule or working hours. I would do no consulting during the regular work hours; I would use accumulated vacation time to do the consulting.

Thank you for your consideration regarding this matter. I would appreciate a prompt decision, as I need to let the private firm know by September 15 whether I can participate in this endeavor.

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

Code Section 25-4-105(3)(a), cited above, prohibits a public servant, including a bureau manager of a state agency, from having a material financial interest in a business that is a contractor with the state.

Therefore, Code Section 25-4-105(3)(a) will prohibit the requestor from having a material financial interest in the private firm if it enters into a contract with State Agency B to provide the proposed services described in the requestor's letter.

A material financial interest is defined in the above cited Code Section 25-4-103(k)(i)(ii). Specifically, the requestor may not receive an aggregate annual net income of Five Thousand Dollars ($5,000.00), or more, from the private firm if the requestor has no ownership interest in the private firm.

If the requestor will have a material financial interest in the private firm, then the only applicable exception to a violation of Code Section 25-4-105(3)(a) in the circumstance presented by the requestor is set forth in the above cited Code Section 25-4-105(4)(b). Specifically, this applicable exception would be where State Agency B's contract is let to the private firm as the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received by State Agency B for the proposed service.

Ronald E. Crowe

Executive Director