This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on March 5, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May a construction company employing an alderman construct homes for individuals who are participants in a home buyers assistance grant awarded to the city the alderman serves?

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), (f)(i)(ii), (g)(ii), (h) 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) “Government” means the state and all political entities thereof, both collectively and separately, including but not limited to:

(ii) Municipalities.

(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.

(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) 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.
 

I am an elected official serving as Alderman-at-Large for the City.

An official opinion is requested for the following question: Is there a conflict in the statement below?

The city has been awarded a grant to assist homebuyers in purchasing homes.  I am employed part-time with a local construction company that is interested in building some of the houses.  However, all contracts for construction will be chosen by the Planning and Development District Administrator of the project.

How do I stand if my employer is awarded the contract?

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 an alderman from having an interest, direct or indirect, in a contract authorized by the board of aldermen of which he is a member during his term and for one year thereafter.

The city’s agreement to act as the governmental entity procuring the  grant that is providing the funding for the home buyers assistance program results in the board of aldermen being part of the authorization of a government contract, i.e., the grant, for purposes of Constitutional Section 109 and Code Section 25-4-105(2).  Also, the employer of the requestor being the builder for the home buyers whose homes are being funded by the city grant results in the requestor having an indirect interest in the city’s grant that was authorized by the board of aldermen of which he is a member in violation of Constitutional Section 109 and Code Section 25-4-105(2).

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) will prohibit the construction company employing the requestor from constructing homes for individuals whose homes are being funded through the home buyers grant awarded the city. This prohibition will apply during the requestor’s term and for one year thereafter, if the requestor remains an employee of the construction company.

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 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.

The issue presented by the requestor also must be viewed as it relates to Code Section 25-4-101, set forth above. This code section 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, an alderman’s employer constructing homes for individuals who are benefitting from a home buyers grant awarded the city the alderman serves is a circumstance that will create suspicion among the public and reflect unfavorably upon the city.

Therefore, the public policy mandate and public trust duty set forth in Code Section 25-4-101 are other reasons why the requestor’s employer should not construct homes for individuals who are benefitting from a home buyers grant awarded the city the requestor serves as an alderman.
 
 

Scott Rankin
Executive Director