ADVISORY OPINION NO. 06-010-E

March 3, 2006

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.

I am a member of the Mississippi [Legislature] who also serves as the attorney for [a County] Board of Supervisors.

During the Fourth Extraordinary Session of 2005, the legislature authorized the issuance of Eighteen Million Dollars ($18,000,000.00) in loans and Six Million Dollars ($6,000,000.00) in grants to [a Corporation] located in [the county I represent]. House Bill 1 provided further in §57-75-15(3)(l) of the Mississippi Code of 1972 that “No bonds shall be issued under this paragraph until local governments in the county in which the project is located have irrevocably committed funds to the project in an amount of not less than Two Millions Dollars ($2,000,000.00).” I am enclosing a copy of House Bill 1 for your review.

The Board of Supervisors has retained [another law firm] as outside legal counsel/bond counsel to formulate a funding source to fulfill the County’s portion of the irrevocable financial commitment required by House Bill 1. If general obligation bonds are determined to be the preferred method of funding for the County, can I, as the local board attorney, receive compensation from the issuance of the bonds?

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 the Legislature from having any direct or indirect interest in a contract with the government authorized by the Legislature during his or her term or for one year thereafter. Frazier v. State, ex rel. Pittman, 504 So.2d 675, 693 (Miss. 1987). In this context “authorized” means more than just the obvious act of approving a contract. It also means appropriating money. An appropriation of public money which ultimately funds a contract is an action which authorizes that contract. See Frazier at 693, citing Cassibry v. State, 404 So. 2d 1360, 1366-67 (Miss. 1981).

The requestor obviously has a direct interest in his or her contract of representation with the board of supervisors. However, the legislation in question does not have the effect of either authorizing or funding the requestor’s contract with the board of supervisors. The legislation obligates local governments to provide local funding for the project but does not dictate or even suggest the method by which the local governments should raise those funds. Rather, the discretion is left entirely to the local governments regarding the source of their contribution to the project. Consequently, any decision by the board of supervisors to issue bonds in support of the county’s contribution to the project would be a separate matter from the legislation itself. Therefore, no violation of the Ethics in Government Laws should arise if the board of supervisors chooses to issue bonds as the county’s method of funding and compensate the requestor in relation to the issuance of those locally authorized bonds.

MISSISSIPPI ETHICS COMMISSION



BY: Tom Hood, Executive Director and
Chief Counsel