This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on April 2, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May a former state employee contract with a potential vendor on a statewide registration project once the state agency releases the RFP when the former state employee while still employed with the state agency worked with the state agency, interested vendors, local officials and citizens on the installation and use of the potential project?

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)(v), (h), (o) 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:

(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.

(o) "Public funds" means money belonging to the government.

(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.
 

I am writing to request an Ethics Commission opinion of my potential involvement with a technology vendor in light of section 25-4-105(3)(e).

I resigned from employment with a state agency effective December 31, 2003. Since that time, I have done some contract work with the state agency, conducting training at various locations around the state. I have also done contract work for a variety of non-governmental entities.

During my years at the state agency, I worked in three different divisions. I began work in one division in June of 2000, and was there until the end of my employment with the state agency. I served as Director of Federal Compliance for the last eleven months I was employed there.
 
Federal Compliance deals directly with programs mandated by the Federal Act passed by Congress in 2002. One of the programs required under that law is the implementation of a statewide registry system.

The state agency examined installation of such a program long before I joined the division, even before I joined the agency. After the issues of 2000 caused state and federal authorities to examine processes, the question of an statewide registry system came up again. An appointed task force looked at that issue as well as several others. Legislation allowing the state to research possible solutions for a statewide registry system was passed in 2002. Issuance of an RFP and procurement of such a system was made contingent on federal funding for such a project.

While I was at the state agency, I had the opportunity to meet many statewide registry system vendors, as well as vendors of other technologies. Many vendors made presentations to the state agency's staff, as well as to local officials. I helped plan a vendor fair, at which such vendors were able to demonstrate their products to a variety of officials.

Because Mississippi law made the actual start of the procurement process contingent on federal funding the state agency decided to wait until the complete 2003 appropriation from Congress was transferred to the state to start. The 2003 appropriation was actually half of what was authorized by the Federal Act, and much of that money was held for several months by federal authorities because of the lack of a federal agency to distribute the funds. By the time I left the state agency, Mississippi had received only a small portion of Year 1 funding, not enough to formally start the procurement process.

Some time around my departure, an omnibus spending bill was passed in Congress that made up for the Year 1 shortfall, and appropriated Year 2 funds. I am not aware if those funds have been transferred to the states, or if the federal agency responsible for those funds has been staffed to make the transfers.

In early March of 2004, I was approached by a vendor which plans to bid for the statewide registry system project, once the RFP is released. They are interested in contracting with me to assist them in their RFP response development, as well as other activities if they are awarded the bid. I believe their biggest interest in me is related to those post-award activities, especially working with the state agency and training local official on installation and use of a new system.

I did not participate in the development of the RFP, the identification of technical specifications for the system, or anything other than the development of public documents, which are available to all vendors (the state plan for the Federal Act Compliance, for example, which is available on the state agency's web site). While I did a great amount of work setting up educational opportunities for vendors, officials, and citizens, I never participated in any activity that would have given me access to "private" information held only by the state agency's staff through this process.

I would like to know if the Ethics Commission believes that my contracting with any technology vendor constitutes a violation of the code section I referenced above. If the Commission does consider involvement with the RFP response a violation, would post-bid award involvement be proper (the training mentioned earlier)?

I would like to work with this vendor because I enjoy the subject matter and while I have left the state agency, I haven't abandoned my interest in the state agency's divisional procedures. I honestly do not believe that I have any information that is not available to other vendors, many of whom have been to every public meeting and vendor event the state agency has held, many of which took place after my departure.

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

The above cited Code Section 25-4-105(3)(e) is the only Ethics in Government law that specifically prohibits the actions of a former public servant, such as a former state employee, who was not a member of a governmental body or governmental board. [Emphasis added to bold text]

Specifically, Code Section 25-4-105(3)(e) prohibits a former public servant from being compensated by a business after the former public servant leaves his or her 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. [Emphasis added to bold text]

Code Section 25-4-105(3)(e) does not prohibit a former public servant from being compensated for providing services to a business that 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.¹

Since the duties the requestor performed for the state agency were unrelated to the development of the RFP, then the requestor would not be prohibited by Code Section 25-4-105(3)(e) from being compensated by a vendor to assist them in their response to the RFP, as well as other activities if they are award the bid. In short, the work the requestor did while employed with the state agency in setting-up educational opportunities for vendors, officials and citizens relating to the expectation of implementing a statewide registry system was a separate matter from the RFP.

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, proferring 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]