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 the director of a county port commission upon retiring from the county port commission be employed by a nonprofit county economic development foundation when his employment duties with the nonprofit county economic development foundation will be to provide consulting services to the county port commission in maintenance, construction, promotion, advertising and/or advancement of the county port of entry by way of a contract to be entered into between the county port commission and the nonprofit county economic development foundation?

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(c), (d), (e), (f)(i)(ii), (g)(i)(ii)(v), (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.

(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.

(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) ‘Government’ means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties;

(ii) Municipalites; and

(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.

(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 (3)(e) states:
 

“(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.
 

Thank you for meeting with me yesterday concerning my retirement and my request for a ruling to work on a contract basis with the County Port Commission through the City and County Economic Development Foundation.

During our conversation, you suggested I submit a written explanation of my request to the Mississippi Ethics Commission for consideration and approval.

Presently, I am employed by three organizations, the County Port Commission, the City and County Economic Development Foundation and the County Chamber of Commerce.  I spend approximately one-third of my time with each organization.

The County Port Commission pay my salary, the EDF pay for some of my travel, insurance and automobile and the Chamber of Commerce provides office space and other incidental expenses.

The Attorney General’s office has reviewed my request and ruled that the County Port Commission can contract with the City and County Economic Development Foundation, but they wanted a ruling by the Mississippi Ethics Commission on Section 25-4-105 of the Mississippi Code.

The following additional facts were obtained through the above referenced Attorney General’s office request from the County Port Commission. The County Economic Development Foundation is a 501C-6 nonprofit corporation. The County Economic Development Foundation works with existing industry, recruits new industry, and advertises the assets of the community, including the Port and Port of Entry. The County Port Commission intends to contract with the County Economic Development Foundation for personnel and consultant services to assist the Commission in maintenance, construction, promotion, advertising and/or advancement of the port of entry in the County.

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

Code Section 25-4-105(3)(e), cited above, is the only Ethics in Government law that specifically prohibits the actions of a former public servant who was not a member of a governmental body or governmental board.

Code Section 25-4-105(3)(e) prohibits a former public servant, such as the director of a county port commission, from being compensated by a business after the former public servant leaves his public employment if the former public servant is compensated for performing services related to “any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated” during the former public servant’s public employment.¹
 
It is the Commission’s understanding that the nonprofit county economic development foundation which the requestor will be employed by is within the definition of “business” set forth in the above cited Code Section 25-4-103(c), as it does on occasion receive public funds.

Code Section 25-4-105(3)(e) does not prohibit a former public servant from being compensated for providing services, including services as an employee, to a business that contracts and/or contracted with the former public servant’s governmental authority, unless the compensation for performing services is related to “any case, decision, proceeding or application”  with respect to which the former public servant was directly concerned or in which he personally participated.

Although, the requestor as the county port commission’s director was directly concerned with and personally participated in the recruiting of industries for the county port by way of the existing arrangement among the county port commission, the county economic development foundation and the chamber of commerce, those duties in enlisting and recruiting firms to locate in the county port’s industrial complex are not what would be considered services related to “any case, decision, proceeding or application” for purposes of Code Section 25-4-105(3)(e).²

The requestor will not be changing sides from a public obligation to a private obligation as anticipated by Code Section 25-4-105(3)(e). Therefore, the requestor, upon retiring from the county port commission, would not be prohibited by Code Section 25-4-105(3)(e) from being compensated by the nonprofit county economic development foundation to provide consulting services to the county port commission in maintenance, construction, promotion, advertising and/or advancement of the county port of entry by way of a contract to be entered into between the county port commission and the nonprofit county economic development foundation.
 
 

Scott Rankin
Executive Director
 

¹ Where the legislature has not defined a term within the statutory scheme, the courts look to the term’s common and generally accepted meaning.  Corry v. State, 710 So. 2d 853, 861 (Miss. 1998).  Black’s Law Dictionary, (5th Edition 1979) defines case as “a general term for an action, cause, suit, or controversy, at law or in equity; a question contested before a court of justice.” Webster’s Ninth New Collegiate Dictionary, (1988), defines case as “a situation requiring investigation or action” or “a suit or action in law or equity.” Black’s Law Dictionary, (5th Edition 1979), defines decision as “a determination arrived at after consideration of facts, and, in legal context, law.”  Webster’s Ninth New Collegiate Dictionary, (1988), defines decision as “a determination arrived at after consideration” or “a report of a conclusion.” Black’s Law Dictionary, (5th Edition 1979), defines proceeding as “in a general sense, the form or manner of conducting juridical business before a court or judicial officer” or  “a ‘proceeding’ includes action and special proceedings before judicial tribunals as well as proceedings pending before quasi-judicial officers and boards.”  Webster’s Ninth New Collegiate Dictionary, (1988), defines proceeding  as “legal action” or “a procedure.” Black’s Law Dictionary, (5th Edition 1979), defines application as “a putting to, placing before, preferring a request or petition to or before a person” or “the act of making a request for something.”  Webster’s Ninth New Collegiate Dictionary, (1988), defines application as “a request or petition” or “a form used in making a request.” [Emphasis added to bold text]

² See Footnote 1.