This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on April 5, 2002, basing its approval solely on the facts and circumstances stated herein.
ISSUE 1:May the county board of supervisors contract for meal and supply purchases from a business owned by the spouse of a member of the board?
ISSUE 2:May the county board purchase meals and supplies from a board member’s spouse’s business with County Fire Funds, whose source is both state and county funds?
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.”
“(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, anonprofit corporation or other such entity, association or organization receiving public funds.(d) ‘Business with which he is associated’ means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.(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.(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.(q) ‘Relative’ means the spouse, child or parent.”
“(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.”
Is it legal under the Constitution or Law of the State for the Board of Supervisors to contract or pay for meals and supplies purchased from a store/café owned by the wife of the President of the Board?Does it matter that the money comes from the County Fire Fund (part funded by State money & part funded by County monies)?
In every training session or seminar since I became supervisor, I have been led to believe it was not legal or permissible and I don’t think I misunderstood.
I have also written a similar request to the Attorney General in case this is in that area rather than ethics.
Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.
Issue 1:Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a member of a governmental body, such as a member of a board of supervisors, from having an interest, direct or indirect, in a contract authorized by the governmental body of which he/she is a member during their term and for one year thereafter.
The requestor is cautioned to advise the board member 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.
Issue 2:As stated by the requestor, Issue 2 concerns whether a violation of the conflict of interest laws would occur if the meal and supply purchases were made from the County Fire Fund, whose source is both state and county.A violation of the conflict of interest laws would occur regardless of the source of the funds, if the board of supervisors controls the funds and approves the expenditures paid with the funds.[1]
Scott Rankin
Executive Director