This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 7, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May a retired state employee become a contractor with a state department to administer a grant the state department awards to another state department that was the former employer of the retired state employees?

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), (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.

(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.
 

A Commissioner has directed me to send you a proposal detailing contractual services for which I would like to be considered after retiring from full-time State service.  The Commissioner asked that I obtain the Ethics Committee’s opinion as to whether or not my proposal is in violation of Section 25-4-105 of the Mississippi Code 1972.

The Mississippi Department of Education administers grants to fund educational services for the state agency.  One of these grants is designed to offer educational programs for incarcerated youth.  We have received funding through a grant since 1999, and I have worked with the Department of Education for many years in implementing the purposes of this grant in-so-far as expenditure of funds.

The grant, as written by the Mississippi Department of Education, has funds allocated to employ a grant evaluator and administrator.  When I learned that the Department of Education’s grant application had been approved for renewed funding, I began considering the possibility of being a grant administrator, as I have worked with grants of this nature administered by the Department of Education for the entire seventeen years in which I have been employed by the state agency.  I have been planning to retire before July 1, after several years of State service.

The only issue which needs to be addressed is from the standpoint of the statute.  Can I legally work contractually as a grant administrator of the Department of Education’s federally funded grant?  The committee’s decision regarding this matter will determine whether or not I pursue administering this grant after retirement.

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 former public servants who were not members of a governmental body or governmental board. [Emphasis added to bold text]

Code Section 25-4-105(3)(e) prohibits a former public servant from being compensated by a person or 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.  [Emphasis added to bold text]

A governmental entity, such as the state, is included in the definition of  “person” set forth in Code Section 25-4-103(m), cited above, by way of the language “and where appropriate a governmental entity.”

Therefore, the state department awarding the grant cannot compensate the requestor for serving as a grant administrator on a grant awarded to the requestor’s former state department employer unless the requestor, as an employee with her former state department, was not directly concerned nor personally participated in the decision, proceeding or application of the grant in question.

The fact that the requestor may have been directly concerned or personally participated in a previous grant while a state employee is not prohibited by Code Section 25-4-105(3)(e). This is true even though the previous grant may have been to provide the same type of services to the same beneficiaries.
 
 

Scott Rankin
Executive Director