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 school district contract with a community mental health center which employs a school board member?

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 25-4-103(a), (c), (d), (f)(i)(ii), (g)(i)(ii)(iii)(iv)(v) and (h) states:
 

“(a) ‘Authority’ means any component unit of a governmental entity.
 
(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) ‘Government’ means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties;

(ii) Municipalities;

(iii) All school districts;

(iv) All courts; 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.”

Code Section 25-4-105(1), (2) and (3)(a) 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.

(3) No public servant shall:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the  governmental entity of which he is a member, officer, employee or agent.”

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 this letter on behalf of the City Public School District.  The City Public School District would like to contract with a  City Community Mental Health Center to provide counseling services for its employees and their dependents.

One of the members of the Board of Trustees of the City Public School District is employed by the Community Mental Health Center as a therapist.  According to the April 5, 2004 letter of  an individual, a copy of which is attached, the Community Mental Health Center employee will not provide services of any kind to employees of the City Public School District or their dependents.  The City Public School District will be paying for the services provided by the Community Mental Health Center through a contract.

It is my understanding that the employee of the Community Mental Health Center and will not receive any direct benefit from the contract between the City Public School District and the Community Mental Health Center.

Please let me know whether or not you see a conflict with the City Public School District contracting for services with the Community Mental Health Center.

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

The community mental health center is a facility of the regional mental health authority, a governmental authority. According to the information provided by the requestor, this school board member will have nothing to do with the performance of the contract, and his or her compensation from the center is in no way connected to the district’s payments under the contract. Moreover, the center’s funding is not dependent upon the school district’s payments under the contract. The Commission finds this school board member, under these specific circumstances, has no interest in the contract for counseling services between the school district and the community mental health center, and no conflict exists with regard to Section 109, Miss. Const. of 1890, or Section 25-4-105(2), Miss. Code of 1972.

Also, the requestor is advised that if the trustee in question did personally and/or pecuniarily benefit from the contract as a counselor for the community mental health center, then the trustee would be in violation of Constitutional Section 109 and Code Section 25-4-105(2).

This interpretation would probably not apply if the school board member in question were employed by a business, rather than the government. Furthermore, no conflict will arise under Code Sections 25-4-105(1) or (3)(a) because the community mental health center is not a business, as defined in Code Section 25-4-103(c).
 

Scott Rankin
Executive Director