This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on December 1, 1995.

May a legislator at the end of his term accept employment as the director of a private foundation that is established and funded by state educational institutions?

         The Mississippi Ethics Commission is restricted to interpreting and issuing opinions on Sections 25-4-101 through 25-4-119, 1972 Mississippi Code Annotated and Article IV, Section 109, Mississippi Constitution of 1890. Therefore, Mississippi laws outside the jurisdiction of the Commission and internal rules and regulations of the governmental entity are not addressed by this opinion.

         The pertinent conflict of interest laws to be considered here are:

         Constitutional Section 109 states:

"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."

Code Section 25-4-105(2) states:

"(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.

         Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered part of this opinion.

I will be retiring from the Mississippi Legislature at the end of the current legislative term and will be applying for employment as Director of a Foundation established by certain state educational institutions.

The Foundation is a private entity and is funded by dues paid by participating state educational institutions. It is not mandatory for each state educational institution to belong to the Foundation. Also, the Foundation was not created by legislative authority.

Should I become employed by the Foundation, I will not be a member of the State Retirement System as a Foundation employee nor will I receive any other fringe benefits furnished by the State of Mississippi.

I respectfully request that the Ethics Commission consider the above facts and issue an opinion to me regarding whether I would or would not violate the ethics laws should I accept employment with the Foundation.

         Based solely on the facts and circumstances presented herein, the Commission's opinion is as follows.

         The Mississippi Supreme Court held in both, Cassibry v. State, 404 So. 2d 1360 (Miss. 1981), and Frazier v. State, 504 So. 2d 675 (Miss. 1987), that passage of appropriation bills authorizing expenditures for state agencies or other public entities are necessary before state agencies or other public entities can obligate the State and therefore are authorizations subject to Constitution Section
109.

         The requestor/legislator's acceptance of employment with the foundation within one (1) year of the end of the requestor's legislative term is not prohibited by the above cited Constitutional Section 109 and Code Section 25-4-105(2) if the only funding the foundation receives from the state educational institutions is through the simple payment of legitimate dues.
For purposes of this opinion, the Commission must assume that the dues being paid are legitimate dues and not in the nature of appropriations or assessments from the state educational institutions.

         This finding is based on the fact that the payment of dues does not constitute a contract. An authorization of a contract or the authorization to expend funds for a contract must exist in order to apply the prohibitions set forth in Constitutional Section 109 and Code Section 25-4-105(2).

         However, should a contract or contracts exist between the foundation and any of these state educational institutions, the requestor's employment by the foundation within one (1) year of the expiration of his term would be prohibited by Constitutional Section 109 and Code Section 25-4-105(2).

          To illustrate, should any state educational institution act to hold or disburse money for the foundation, provide accounting or other services for the foundation, lease facilities to the foundation or enter into grants with the foundation, a contract[s] would exist and the requestor would be so prohibited.

         While not under the control of the requestor, the Commission does suggest that the foundation or educational institutions seek an opinion from the Office of the State Attorney General to insure that any payments that any educational institution may make to the foundation would be in compliance with all other state laws.
 

Ronald E. Crowe Executive Director