ADVISORY OPINION NO. 06-062-E

September 1, 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.

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

(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:

(i) Counties;

(ii) Municipalities;

(iii) All school districts;

(iv) All courts; 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.

(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.

(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.

II. FACTS

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

Please be advised that we represent the Board of Supervisors of the County. In connection with this, I have been requested to obtain an official ethics opinion regarding a Supervisor.

The Board of Supervisors is authorized pursuant to Section 19-31-1 et seq. of the Mississippi Code of 1972, as amended, to create certain public improvement districts. One of the recently created public improvement districts has a member of the Board of Supervisors as an appointee to the Board of Directors for the District. I have advised the Supervisor not to take an oath of office or otherwise enter upon the duties of acting as a director until such time as we have had an opportunity to obtain an official ethics opinion with regard to whether it would be a violation of the Mississippi Ethics law for an elected
Supervisor to also serve as a member of the Board of Directors of a public improvement district created by the Board of Supervisors pursuant to Section 19-31-1 et seq. of the Mississippi Code of 1972, as amended. The Supervisor will waive any compensation with regard to his service as a member of the Board of Directors of the Public Improvement District.

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 funded or otherwise authorized by that board during his or her term or for one year thereafter. See Frazier v. State, 504 So. 2d 675, 693 (Miss. 1987), citing Cassibry v. State, 404 So. 2d 1360, 1366-67 (Miss. 1981). If the supervisor accepts no form of compensation for service on the public improvement district board, then no contract will exist with regard to his service on that board.

Likewise, the supervisor will not be a “contractor” to the county as an uncompensated member of the public improvement district board, and no violation of Section 25-4-105(3)(a), Miss. Code of 1972, should arise from service on that board. See also Moore, ex rel. City of Aberdeen v. Byars, 757 So.2d 243, 248 (¶ 15) (Miss. 2000).

Therefore, service by a county supervisor as an uncompensated member of a public improvement district board should not automatically give rise to a violation of the Ethics in Government Laws. However, the requestor may also wish to consult with the Office of the Attorney General regarding Sections 1 and 2, Miss. Const. of 1890, the Separation of Powers Rule, and other potential issues arising outside the Ethics in Government Laws.

MISSISSIPPI ETHICS COMMISSION


BY: Tom Hood, Executive Director and
Chief Counsel