This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on October 4, 2002, basing its approval solely on the facts and circumstances stated herein.
 

May an airport authority contract for the construction of a new terminal building when the new building’s glass will be purchased from a business employing one of the airport authority commissioner’s spouses?

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 25-4-101 states:

“The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust.  Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the state and local governments.”

Code Section 25-4-103(a), (c), (d), (f)(i)(ii), (g)(v), (h), (l), (p)(i)(ii)(iii) and (q) 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.

(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:
 

(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.

 
(l) ‘Pecuniary benefit’ means benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain.  Expenses associated with social occasions afforded public servants shall not be deemed a pecuniary benefit.

(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.”

Code Section 25-4-105(2) 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.”

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

The undersigned is general counsel for the City Airport Authority.  The purpose of this letter is to request an advisory opinion from you.

The City Airport Authority plans to construct a new terminal building.  The new terminal building will cost approximately Eight Million Dollars ($8,000,000.00) At the present time, the architect for the project is in the design plans indicate that a substantial amount of glass will be required for the exterior of the building.

 
A Commissioner is one of the five members of the Board of Commissioners of the City Airport Authority. The Commissioner’s spouse is an employee of a Company.  Enclosed, for your ready reference, find photocopy of letter I received from the Commissioner’s spouse wherein the spouse states that the Company will not be acting as a subcontractor on the new City Regional Airport terminal.  However, during a telephone conversation with the Commissioner’s spouse, he informed me that his company could possibly provide glass to any one of several local companies that may end up being a subcontractor on the project.

We need your counsel and advice as to what action the City Airport Authority should  take with respect to this potential conflict of interest.  If the Commissioner does not  need to resign from the Board of Commissioners, should the Commissioner recuse himself when any vote is taken on a construction contract for the new terminal building?

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, prohibit a member of a governmental body, such as an airport authority, from having an interest, direct or indirect, in any contract authorized by the governmental body of which she is a member during her term and for one year thereafter.

In Smith v. Dorsey, 530 So. 2d 5 (1988), the Mississippi Supreme Court held a public official has an indirect prohibited interest in a contract in which the public official’s spouse has a direct interest for purposes of Constitutional Section 109 and Code Section 25-4-105(2).

In Frazier v. State, 504 So. 2d 675, (Miss. 1987), the Mississippi Supreme Court set forth the following four elements necessary to apply the Constitutional Section 109 prohibition, and thereby the Code Section 25-4-105(2) prohibition:
 

1. Is there a governmental contract with the state, county, municipality or district?

2. Does the public officer have an interest, direct or indirect, in the contract?

3. Is the contract authorized by a law passed or order made by a board or public body
            of which the public officer is a member?

4. Was the authorizing law or order passed during the public officer’s term or within
            one year after the expiration (or termination) of such term?

 
First, the construction of a new terminal building would require the airport authority to contract with a construction company that would ultimately subcontract with a supplier for glass in the new building.

Secondly, the commissioner would have an indirect interest in the terminal building construction contract, if the glass used on the construction contract is provided by the business employing the commissioner’s spouse.

Thirdly, the facts presented by the requestor indicate the terminal building construction contract would be authorized by a law passed or order made by the board or public body of which the public officer is a member.

Lastly, the airport authority construction contract would be during the commissioner’s term of office.

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) will prohibit the airport authority from entering into a contract during the commissioner’s term and for one year thereafter with construction companies, either as a contractor or subcontractor that purchases glass for the airport authority project from the business employing the commissioner’s spouse.   The prohibition stems from the commissioner having an indirect interest in the airport authority’s construction contract by way of the commissioner’s spouse’s employment with the glass business providing the glass for the new terminal construction project.  An employee clearly  has a personal and pecuniary interest in all his employer’s contracts.

The requestor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2).  Even without the commissioner’s vote, the authorization by the member’s board, nonetheless, results in a contract in which the commissioner has a prohibited interest.

In addition, the State’s public policy mandate set forth in Code Section 25-4-101, cited above, is a sufficient reason, in this Commission’s opinion, for an airport authority to avoid contracts or subcontracts that benefit a business that employs a commissioner’s spouse.

Code Section 25-4-101 sets the tone for the conflict of interest laws as the Legislature’s “Declaration of Public Policy.” This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public’s trust in state or local government.
 
 
Specifically, Code Section 25-4-101, in part, states, “The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust.” [Emphasis added to bold text]

Clearly, the airport authority entering into a contract, that results in a subcontract benefitting the company employing a commissioner’s spouse, can be expected to create suspicion among the public and reflect unfavorably upon the public servant’s governmental entity as there will be a question of a division of loyalty on the part of the public servant.  A public servant should never place himself or herself, or be placed by his or her governmental entity, in a situation where a private interest is competing or appears to be competing with his or her public interest.
 
 
 
 
 

Scott Rankin
Executive Director