OFFICIAL ADVISORY OPINION NO. 05-118-E

January 6, 2006

This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on January 6, 2006, basing its approval solely on the facts and circumstances stated herein.

May a city contract with a regional planning and development district (PDD) when an alderman of the city serves as an uncompensated director of the PDD?

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(f)(i)(ii), (g)(ii)(v), (h), (l) and (p)(i)(ii)(iii) states:

“(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:

(ii) Municipalities; 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.

(l) ‘Pecuniary benefit’ means benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain. Expenses associated with social occasions afforded public servants shall not be deemed a pecuniary benefit.

(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(1), (2), (3)(a) and (4)(b) 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.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(b) May be a contractor or vendor with any authority of the governmental entity other than the authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which he is a member, officer, employee or agent where such contract is let to the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received or where the goods, services or property involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws.”

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

We represent a City. The City is a code charter municipality and its governing authority consists of a mayor and board of five (5) aldermen.

The City is in the process of obtaining professional services (administrative, engineering and legal) for its 2006 Community Development Block Grant Public Facilities and Economic Development Programs. The City advertised for proposals for these professional services and among the administrative proposals received was a proposal from a Planning and Development District (PDD). One of the City’s aldermen serves as a director for the PDD. This alderman does not receive a salary or any other type of compensation for serving as the director.

If the mayor and board of aldermen determine that the proposal from the PDD is the best proposal for administrative services, may the City enter into a contract with the PDD to provide these services? If they may, then should the alderman recuse himself/herself from participating in the selection of that proposal?

The Commission formally adopts Advisory Opinion No. 02-043-E, with attachments, in response to this request and by attachment incorporates it into this opinion.

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

As set forth in the attached advisory opinions, the Commission has consistently held that PDD’s are considered part of the government for purposes of the Ethics in Government Laws. Section 25-4-103(g)(v), above. Therefore, public servants appointed to a PDD board are concerned only with competing public interests and not private interests, as long as they are not compensated for their service on the PDD board.

Based on this finding, the prohibitions set forth in Section 25-4-105, cited above, will not prohibit the alderman, who also serves on the PDD board, from voting to accept the proposal submitted by the PDD to perform the stated professional services for the city.



Scott Rankin
Executive Director