ADVISORY OPINION NO. 07-006-E

January 18, 2007

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.

I am currently employed in [a department of state government]. I have served in my position for two years and have been employed with the Department for 20.5 years. In my current position I am responsible for the following six areas of operations: Budget, Legislation, School Finance Services, Procurement, Research and Statistics, and Internal Accountability.

A nonprofit foundation is in the final states of approval consideration of awarding a multi-year grant to Mississippi to establish a K-12 education Center that will employ staff to focus on five key areas as a means of assisting the state in creating significant improvements in public education:

• Research and development of high quality curriculum and assessment programs that accelerate student learning;

• Increase the quantity and improve the quality of teachers in every classroom throughout the state;

• Increase the quantity and improve the quality of leaders in every school and district throughout the state;

• Foster statewide value for public education in Mississippi; and

• Forge partnerships to develop an education experience that prepares students for the 21st century workforce in Mississippi.

The funding for the Center will not be allocated to any state governmental agency. The grant funds would transfer to a second private, nonprofit Foundation and the Center would be established within the Foundation. Staff of the Center would be employees of the Foundation.

There is a possibility that I may be offered the opportunity to serve as the executive director of the Center. Before proceeding further, I am asking you for an official Ethics Commission Opinion regarding any possible violation of the ethics laws of the state of Mississippi should I be offered this position and accept. I have reviewed the files within the Department for the prior three-year period, and to the best of my knowledge, the Department has had no contract or grant with the first Foundation. In addition, I have never, personally or professionally, received any funding or support from either Foundation nor have I had any prior involvement in any capacity with either Foundation.

The Center as described above is being funded as a non-governmental, private entity in an effort to impact and accelerate improvements in K-12 education in Mississippi. The Center will work and collaborate with all stakeholders in this effort: education leaders from kindergarten through graduate school, community leaders, business leaders, faith-based leaders, political leaders and parents.

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 being employed by an entity which contracts with his or her former government employer. The law merely prohibits the former public servant from working in the private sector on any matter in which he or she was directly or personally involved while working for the government. Here there is reportedly no matter currently ongoing or previously transpired between the department and the nonprofit foundation in question. Therefore, no violation of Section 25-4-105(3)(e) should arise if the requestor leaves the department and accepts employment with the foundation.

MISSISSIPPI ETHICS COMMISSION


BY: Tom Hood, Executive Director and
Chief Counsel