February 1, 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 February 1, 2002, basing its approval solely on the facts and circumstances stated herein.
May a former board member of an economic development partnership established by local and private legislation as a not-for-profit corporation to carry-out economic development for the county and city with tax revenues be employed by the partnership within one year of the end of his term as a board member of the partnership?
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)(i)(ii)(iii)(iv)(v), (h), (o) 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:
(i) Counties;(ii) Municipalities;
(iii) All school districts;(iv) All courts; and
(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.(o) “Public funds” means money belonging to the government;
(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.”
“(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.”
I am the attorney for the board of directors of the County Economic Development Partnership (hereinafter referred to as “Partnership”). On behalf of such board of directors, I hereby respectfully request an advisory opinion of the commission as to any opinion of the commission as to any possible ethical violation(s) in regard to the potential employment of a former member of the board of directors as executive director of the said Partnership, to-wit:
The Partnership was formed pursuant to Senate Bill No. 3072, which was adopted by the state legislature and signed into law by the governor in the year 1999. Under this act, a portion of the Partnership funds are derived pursuant to a tax levied by the county board of supervisors upon hotel room rentals and restaurant sales in the county. The Partnership is subject to the public purchasing laws of this state with respect to the expenditures of funds derived from public sources. In addition, both the county board of supervisors and the governing authorities of the City must approve the portion of the annual budget regarding the expenditure of the tax revenue received by the Partnership.
The Partnership is currently seeking to hire a new executive director as the position has been recently vacated. The revenues received from the tax receipts will fund the salary for the position. The list of applicants for the position include the former mayor of the City who served as a voting member of the Partnership’s board of directors pursuant to the provisions of the aforesaid law. As such, the question of possible or potential ethical violation(s) has risen as this individual has been out of office (i.e. as mayor), and thus no longer a member of the Partnership board of directors for less than one (1) year.
We would, therefore, appreciate the commission’s guidance and direction by way of an advisory opinion concerning ethical violation(s), if any, that the potential hiring of such individual as executive director of the Partnership may present. Thank you for your consideration of our request.
Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.
The facts and circumstances that are controlling in this request are the identical controlling facts and circumstances addressed in the attached Advisory Opinion No. 02-002-E.
Therefore, the Commission formally adopts Advisory Opinion No. 02-002-E in its entirety as its response to this request and by attachment incorporates it into this opinion.
Scott Rankin