January 4, 2002
This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on January 4, 2002, basing its approval solely on the facts and circumstances stated herein.
May
a city contract with a company to lay water lines when one of the city’s
aldermen is employed by the company?
Your opinion
request to the Office of the Attorney General dated December 6, 2001, was
referred by that Office to the Mississippi Ethics Commission on December
7, 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), (i), (k)(i)(ii) 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:
(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.
(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);
(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) and (3)(a) 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.
(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 thegovernmental entity of which he is a member, officer, employee or agent.”
Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
I am the attorney of record for the Town.I have the following question to pose:
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, absolutely prohibit an alderman from having an interest, direct or indirect, in a contract authorized by the board of which he is a member during his term and for one year thereafter.
Therefore, Constitutional Section 109 and Code Section 25-4-105(2) absolutely prohibit the city from contracting with the company employing the alderman during his term and for one year after he leaves office.
Also, Code Section 25-4-105(3)(a), cited above, prohibits a public servant of the city, including an alderman, from having a material financial interest in a business that is a contractor, subcontractor or vendor with the city.
A public servant has a material financial interest in a company employing him if he receives an aggregate annual net income of $5,000.00, or more, as set forth in the above cited Code Section 25-4-103(k)(ii).
Therefore, Code Section 25-4-105(3)(a) prohibits the city from contracting with the company to lay water lines if the alderman has earned an aggregate annual net income of $5,000.00, or more, as an employee of the company.
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) or (3)(a).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.
Scott Rankin
Executive Directorr