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 6, 2005, basing its approval solely on the facts and circumstances stated herein.
 

May a consultant to a state agency also be a vendor to the agency?

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(p)(i)(ii)(iii) states:
 

(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.

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
 

A local golf professional consults with a Department of the State on the management of a State golf course located at a State Park.  This facility was formerly managed by an outside management firm; however, the Department has assumed complete operation of the golf course utilizing state employees and contract workers.  The golf professional was hired as a consultant to offer his expertise and assistance to the Department in managing the operation and maintenance of a golf facility.  A copy of the contract is attached.

The golf professional is also a factory authorized dealer for a Golf Cart Company.  Very soon, the Department will need to purchase new golf carts for the golf course at the State Park and eventually for the golf course at another state park.  The golf professional is one of only two or three golf cart sales operations in the State of Mississippi.  The Department’s question is this:  Considering the consulting agreement between the Department and the golf professional, would it be a violation of the Ethics Government Act, Miss. Code Ann., Section 25-4-101, et seq., for the Department to purchase golf carts from the golf professional, should his sale price be the best price following a solicitation of price quotes?

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

The question precedent to be addressed here is whether the consultant is a “public servant,” as that term is defined in Section 25-4-103(p), Miss. Code of 1972, quoted above. If he is not a public servant, then he is not subject to the Ethics in Government Laws.
The consultant is obviously not an “elected or appointed official of the government,”  nor does he receive a “salary, per diem or expenses paid” with government funds.  The “Golf Course Management and Consulting Agreement” provided by the requestor specifies the type of relationship existent between the agency and the consultant. On page 6 in paragraph 19 entitled “Personnel/Relationship of Parties,” the agreement reads, “[i]t is expressly understood and agreed that the [agency] enters into this Contract with the CONTRACTOR [consultant] based on the purchase of services and not based on an employer-employee relationship.” The terms of the agreement bear out this characterization. Furthermore, none of the terms of the agreement make the consultant an agent of the state.  Clearly, the consultant is not an “officer, director, commissioner, supervisor, chief, head, agent or employee” of the state.  The consultant is, in fact, an independent contractor to the state agency.

Thus, the consultant is not a public servant and is not subject to the Ethics in Government Laws.  Therefore, the Ethics in Government Laws will not prevent the state agency from purchasing golf carts from the consultant’s business.
 
 

Scott Rankin
Executive Director