May 3, 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 May 3, 2002, basing its approval solely on the facts and circumstances stated herein.
May a former planning and development district employee, without waiting a specified period of time after termination from the planning and development district, serve as the director of a state agency’s division that recommends and/or approves grants and funding to planning and development districts?
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(e),
(f)(i)(ii), (g)(v), (h), (m) and (p)(i)(ii)(iii) states:
“(e) ‘Compensation’ mean money or thing of value received, or to be received, from any person for services rendered.(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.(m) ‘Person’ means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.
(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)(e) 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:
(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.
Please find attached a letter in which I am seeking an opinion regarding whether a conflict of interest exists.My specific concern is how long an individual must be separated from an agency prior to employment with an affiliate agency.
The attached letter to the above correspondence provided the following pertinent information:
Planning and Development District’s Agency A would like to ask your help in an important matter within the State Agency’s Division.
The present Division Director was a former employee of Planning and Development District’s Agency B which poses a major conflict of interest in terms of overriding established state agency regulations for our agency and not other agencies.
The Planning and Development District’s Agency A has had numerous meetings and made several requests to the Division Director about our concerns without resolution.
The Commission formally adopts Advisory Opinions No. 92-203-ER, No. 96-096-E and No. 99-122-E in response to this request and by attachment incorporates them into this opinion.
Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.
In the attached Advisory Opinion No. 92-203-ER, the Commission determined that a planning and development district is a “public body” for purposes of the Ethics in Government laws.Specifically, the Commission found that, “PDD’s are unique and are not clearly defined public entities.However, the Commission found PDD’s are clearly instruments of government and are thus part of government under [the cited above] Section 25-4-103(g)(v).”
The conflict of interest laws do not as such prohibit a former employee of onegovernmental authority, upon his or her termination, from accepting an employment position with another governmental authority nor do the conflict of interest laws impose a waiting period before such employment may occur.Therefore, it is not as such a violation of the conflict of interest laws for a former planning and development district employee to immediately accept employment with the state agency upon his or her termination from the planning and development district.
Notwithstanding the above, the requestor and the division director are referred to the above cited Code Section 25-4-105(3)(e) in regard to the division director being over the specific division that recommends and/or approves grants and funding to planning and development districts.
Specifically, Code Section 25-4-105(3)(e) prohibits a former public servant from performing any service for any compensation for any person or business after termination of his public 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 public employment, i.e., in this instance, the division director’s employment with the planning and development district. [Emphasis added to bold text]
As set forth in the attached Advisory Opinions No. 96-096-E and No. 99-122-E, a governmental authority, such as a state agency, is included in the definition of“person” set forth in Code Section 25-4-103(m), cited above, by way of the language “and where appropriate a governmental entity.”
Therefore, Code Section 25-4-105(3)(e), though not prohibiting the division director as a former planning and development district employee from service with the state agency, does prohibit the state agency compensating the division director in relation to any case, decision, proceeding or application with respect to which the division director was directly concerned or in which he or she personally participated during the period of his or her employment with the planning and development district.
For example, the division director may not be involved as a compensated employee of the state agency with its division’s decision on a grant or funding for the division director’s former planning and development district employer if the division director was directly concerned with or personally participated in the application or decision of the planning and development district to seek the grant or funding while an employee of the planning and development district.
Code Section 25-4-105(2), cited above and referred to in the attached Advisory Opinion No. 99-122-E, and its one year restriction are not applicable in this instance as a planning and development district employee is clearly not a position that would be included in the prohibition imposed by Code Section 25-4-105(2).Code Section 25-4-105(2) applies to members of public boards or bodies that have the authority to authorize contracts.
However, the requestor and the division director are advised that the prohibition imposed by Code Section 25-4-105(3)(e) is not restricted or limited to a specific time period, such as one year, as is the prohibition imposed by Code Section 25-4-105(2).
Scott Rankin
Executive Director