ADVISORY OPINION NO. 06-037-E

June 9, 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 25-4-103, Miss. Code of 1972.

(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.

(e) “Compensation” means money or thing of value received, or to be received, from any person for services rendered.

(m) “Person” means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.

(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.

(3) No public servant shall:

(e) Perform any service for any compensation for any person or business after termination of his office or employment in relation to any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated during the period of his service or employment.

II. FACTS

Facts provided by the requestor are set forth below, with identifying information redacted, and are considered a part of this opinion.

A University is seeking the following opinion that has been proposed to our General Counsel and it was recommended by him to contact the Mississippi Ethics Commission for an opinion.

The University’s Director of Federal Relations has indicated that he would like to retire this summer from the university and in doing so, he would like to create a Limited Liability Corporation (LLC) that would serve as a catalyst for others to contract with him on federal relations work. [sic] He has inquired about the possibility of the university contracting with this corporation for the same services that he currently provides as a university employee. He would not only provide this service for the University, but others outside the university.

The university has expressed an interest in contracting for his services, once he retires; however, we want to make ensure [sic] there are not ethical dilemmas in doing so.

III. ANALYSIS

Section 25-4-105(3)(e), Miss. Code of 1972, quoted above, addresses successive government and private sector employment. Section 25-4-105(3)(e) will not necessarily prohibit a former public servant from contracting with his or her former government employer. The law merely prohibits the former public servant from working for pay in the private sector on any matter in which he or she was directly or personally involved while working for the government. Therefore, if the former public servant was not directly concerned with and did not personally participate in the matter in question, then the former public servant may legally accept payment in the private sector to work on that matter. Elec. Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So.2d 1192, 1204, 1205 (¶¶ 35, 39) (Miss. 2003). The matter in issue here is the proposed contract between the university and the future LLC. If that contract is executed after the public servant’s retirement, then no violation of the Ethics in Government Laws should arise.

MISSISSIPPI ETHICS COMMISSION

BY: Tom Hood, Executive Director and
Chief Counsel