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 3, 2003, basing its approval solely on the facts and circumstances stated herein.
 

May a regional planning commission contract with a business whose past vice-president is the regional planning commission’s executive director?

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(c), (d), (f)(i)(ii), (g)(v), (h), (k)(i)(ii)(iii)(iv), (l) 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.

(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.

 
(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);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00);

(iii) The income as an employee of a relative if neither the public servant or relative is an officer, director or partner in the business and any ownership interest would not be deemed material pursuant to subparagraph (i) or (ii) herein; or

(iv) The income of the spouse of a public servant when such spouse is a contractor, subcontractor or vendor with the governmental entity that employs the public servant and the public servant exercises no control, direct or indirect, over the contract between the spouse and such governmental entity.

(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.”

Code Section 25-4-105(1) and (2) states:
 

“(1) No public servant shall use his official position to obtain pecuniary benefit for himself other than that compensation provided for by law, or to obtain pecuniary benefit for any relative or any business with which he is associated.

(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.
 

As attorney for a Regional Planning Commission, I would request your official opinion as to whether or not the Regional Planning Commission created under Mississippi Code of 1972, Annotated, can enter into a contract with a computer technologies company, without competitive bidding, it being an approved contractor for the Regional Planning Commission meeting a state agency’s approved selection process, even though the Regional Planning Commission has recently hired as its Executive Director, an individual, who has served as Vice-President of the computer technologies company from a few years ago until her appointment as Executive Director of the Regional Planning Commission.

Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.

The following opinion is based on the Commission’s understanding that the former private business employee no longer holds a position with the business nor has any interest of any kind in or receives any benefit from the business.  If the individual who is the subject of this request does retain any interest of any kind in or does receive any benefit from the business, this opinion is no longer applicable and the Commission should be notified immediately.

 
The conflict of interest laws do not prohibit a planning commission from contracting with a business whose past employee now works as executive director of the planning commission nor do the conflict of interest laws impose a waiting period before such a contract may occur.  Therefore, it is not as such a violation of the conflict of interest laws for the planning commission to  immediately contract with the business as long as the new executive director no longer has any interest of any kind in or receives any benefit from the business.

The one year period contract interest prohibition set forth in Constitutional Section 109 and Code Section 25-4-105(2), both cited above, are applicable only to the members of the planning commission’s governing body, i.e., a planning commission board member leaving public service and performing work for a private business contracting with the planning commission. Therefore, the one year trailer language in Constitutional Section 109 and Code Section 25-4-105(2) is not applicable to an individual who was employed by a private company prior to being employed by a government entity.

Code Section 25-4-105(1), cited above, would prohibit a public servant, in this instance the executive director of the planning commission, from using her official position to obtain a pecuniary benefit for herself or a business with which she is associated.  However, the business would no longer qualify as a business with which she is associated upon her resignation and her divesting of all interest in the business, including the receipt of any benefits from the business that amount to more than One Thousand Dollars ($1,000.00) annually.

In addition, 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.
 
Clearly, the planning commission contracting with a business previously employing it’s executive director can be expected to create suspicion among the public and reflect unfavorably upon the planning commission.  Therefore, the Commission recommends the planning commission’s executive director should avoid situations that would appear to provide her previous employer preferential treatment as to fully and completely comply with the public policy mandate set forth in Code Section 25-4-101.

And finally, the Commission defers matters related to the planning commission’s bid process for services to the Office of the State Auditor as the Commission only opines on matters related to the conflict of interest laws.
 
 

Scott Rankin
Executive Director