ADVISORY OPINION NO. 07-069-E

July 6, 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.

(a) “Authority” means any component unit of a governmental entity.

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

(h) “Governmental entity” means the state, a county, a municipality or any other separate political subdivision authorized by law to exercise a part of the sovereign power of the state.

(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:

(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.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee.

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 writing on behalf of one member of a Municipal Airport Board to request an Official Opinion regarding the following scenario.

The City is a Special Charter municipality which as one mayor and two (2) aldermen, each with equal powers and none having a veto.

The City owns the Municipal Airport. On August 1, 2005, the City adopted a Resolution to establish the Municipal Airport Board pursuant to Mississippi code of 1972, as amended. A copy of the Resolution is enclosed. The Municipal Airport Board is charged with operating and maintaining the airport. The operation of the airport is funded by the revenues received from fuel sales and hangar leases. The board members receive a per diem from the airport funds. The Board members are appointed by the City and the City approves the airport budget and can contribute funds and in-kind support to the airport. The Municipal Airport Board has its own Tax ID number, separate bank accounts from the City, and is autonomous from the City.

One of the members of the airport board has a surveying company. At the time of accepting the appointment to the airport board, he knew that he would not be authorized to do any surveying work for the airport board; however, he would like to do work for the city and the city’s contractors. Upon reading the law and several of your previous opinions, it appears that as a public servant to the Municipal Airport Board, this scenario would fall within the auspices of Section 25-4-105(4)(h) and that he would not be prohibited from working for the City since it is a different governmental entity.

III. ANALYSIS

Pursuant to Section 25-4-105(3)(a), Miss. Code of 1972, no public servant of the city may be a contractor, subcontractor or vendor to the city. However, Section 25-4-105(4)(h) allows a public servant of the city to receive compensation from an authority of the city other than the authority of which the public servant is an officer. An “authority” is defined as a “component unit of a governmental entity.” See Section 25-4-103(a) and (h). Here, the governmental entity is the city, and the airport board is an authority of city government. Therefore, the airport board member may perform surveying work for the city and its contractors, but not the airport authority, following the exception set forth in Section 25-4-105(4)(h).

MISSISSIPPI ETHICS COMMISSION

BY: Tom Hood, Executive Director and
Chief Counsel