ADVISORY OPINION NO. 06-008-E
February 3, 2006
| Question Presented: | May a municipality renew a depository contract with a local bank which
employs a potential candidate for alderman as a vice president/branch manager
at another branch in another municipality if the candidate is elected and
continues to receive an annual bonus from the bank which is based in part
on profits derived from deposits including those belonging to the city? |
| Brief Answer: | No. If elected, the requestor will have a prohibited interest in the depository contract via the annual bonus, and a renewal of that contract would constitute a violation of Section 109 and Section 25-4-105(2). |
The Mississippi Ethics Commission issued this opinion on the date shown above
in accordance with Section 25-4-17(i), Mississippi Code of 1972, as reflected
upon its minutes of even date. The Commission is empowered to interpret and
opine only upon Article IV, Section 109, Mississippi Constitution of 1890,
and Article 3, Chapter 4, Title 25, Mississippi Code of 1972. This opinion
does not interpret or offer indemnity from liability for any other laws, rules
or regulations. The Commission based this opinion solely on the facts and circumstances
provided by the requestor as restated herein. The indemnity provided under
Section 25-4-17(i) is limited to the individual who requested this opinion
and to the accuracy and completeness of these facts.
I. LAW
The pertinent Ethics in Government Laws to be considered here are as follows,
to wit:
Section 109, Miss. Const. of 1890.
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.
Section 25-4-103, Miss. Code of 1972.
...
(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.
...
(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.
Section 25-4-105, Miss. Code of 1972.
...
(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.
...
II. FACTS
Facts provided by the requestor are set forth below, with identifying information
redacted, and are considered a part of this opinion.
As per our conservation today I would like to request an opinion concerning my possible running for the vacant alderman’s position in the City 1. I am currently employed by a Bank as a Vice President/Branch Manager of City 2’s branch. The Bank currently has four branches located in four cities. City 2 is located approximately five miles north of City 1. City 1 does hold funds on deposit with the Bank at our City 1 location. My compensation consists of a salary and an annual bonus. This annual bonus is not tied solely to the performance of the bank as a whole, but consist of my personal performance as a branch manager in City 2.
III. ANALYSIS
Section 109, Miss. Const. of 1890, and its statutory parallel, Section 25-4-105(2),
Miss. Code of 1972, both quoted above, prohibit a member of a public board
from having any direct or indirect interest in a contract with the government
authorized by that board during his or her term or for one year thereafter.
Frazier v. State, ex rel. Pittman, 504 So.2d 675, 693 (Miss. 1987). If the
requestor is elected to the board of aldermen, the board will presumably, at
some point, take up the issue of renewing the depository contract with the
bank at which the requestor is employed.
While the Commission has previously held a bank employee who receives only
an hourly wage may have no interest in a governmental depository contract,1 these
facts are different. Here the requestor receives an annual bonus which is,
at least in part, tied directly to the bank’s
profits. Those profits are derived in part from the depository contract with
the city. Therefore, if the requestor is elected and his bonus remains based
partially on bank profits, the requestor will have a prohibited interest in
the depository contract, which will operate to prohibit the city from renewing
the current depository contract with the bank in question. Under the present
facts, a renewal of the current depository contract would constitute a violation
of Section 109 and Section 25-4-105(2) if the requester is a member of the
board of alderman at the time the contract is renewed. It is possible the facts
creating the conflict could change prior to the occurrence of a violation,
but in that event, the requestor should seek another opinion, since different
facts could implicate additional provisions of the Ethics in Government Laws
not addressed in this opinion.
MISSISSIPPI ETHICS COMMISSION
BY: Tom Hood, Executive Director and
Chief Counsel
1 See Ops. Miss. Ethics Commn. No. 05-120-E, 05-112-E and 05-012-E.