ADVISORY OPINION NO. 07-014-E

March 2, 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 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 respectfully request an advisory opinion concerning the possibility of my seeking the position of County Supervisor.

May a county select, as its depository, a bank which employs the spouse of a county supervisor?

My spouse is a teller operations officer and a stockholder of a Bank by virtue of an Employee Stock Option Plan. She receives from the bank a salary greater than $20,000.00 per year. She also receives income from the ESOP an amount greater than $10,000.00 per year. In addition, the bank has a bonus incentive tied to profits which amounts to five percent (5%) of annual salary.

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). A monetary benefit paid under contract to one spouse is also a benefit to the other spouse and gives the other spouse an indirect interest in that contract for purposes of Section 109 and Section 25-4-105(2). Smith v. Dorsey, 530 So.2d 5, 7 (Miss. 1988).

The board of supervisors must authorize a contract with a bank or similar institution for the keeping of county funds. See Frazier at 702 and Sections 27-105-305 and 27-105-353, Miss. Code of 1972. The Frazier court specifically held a board member who is an officer with a bank serving as depository pursuant to a contract authorized by the board during the member’s term was in violation of Section 109 and Section 25-4-105(2). Frazier at 704. Therefore, if the requestor is elected, the board of supervisors will be prohibited from authorizing a contract with the bank in question under the facts provided herein. If the requestor is elected and these facts change, the requestor must seek another opinion from this Commission before the board of supervisors may authorize any contract with the bank in question, as separate violations could still arise under other portions of the Ethics in Government Laws.

MISSISSIPPI ETHICS COMMISSION

BY: Tom Hood, Executive Director and
Chief Counsel