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 July 7, 1995.

May an employee of an architectural firm that contracts with the municipality's governing authority be reappointed as a board member of the municipal historic preservation commission by the municipality's governing authority?

     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 local governmental entity are not addressed by this opinion.

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

Please accept this letter as a request for a formal ethics opinion regarding the appointment of an employee of an architectural firm that currently has a contract with the City to the City's Historic Preservation Commission.

The Historic Preservation Commission of the City was established pursuant to Miss. Code Ann. Section 39-13-5, which empowers municipalities to create a commission to promote and develop the historical resources of the municipality. Each member of the Commission is appointed via nomination by the mayor and confirmation of the City Council.

The Mayor desires to reappoint a commissioner, an interior designer with an architectural firm located in the City, to the Commission. When the commissioner was originally appointed to the Commission, she was employed by a different firm that did not do business with the City; however, her current employer has had contracts with the City in the past and is currently under contract to restore a City building.

Typically, architectural services are considered professional services; therefore, contracts for such services are not let pursuant to the state's competitive bidding process. Commission members do not receive a salary or a per diem for travel and expenses.

In light of the State of Mississippi's conflict of interest laws, Miss. Code Ann. Section 25-4-101, et seq., which place restrictions on public servants from contracting with the governmental entities they serve, the following questions have arisen with regards to the proposed appointment of the commissioner to the Historic Preservation Commission:

1. Is a member of the Historic Preservation Commission a public servant of the City?

2. May the Mayor reappoint the commissioner to the Historic Preservation Commission in light of her employer's current contract with the City?

3. If the commissioner's proposed appointment is delayed until her employer's current contract with the City has expired, may the Mayor then appoint her to the Commission?

4. if the Mayor is permitted to appoint the commissioner to the Commission, what effect will such appointment have on future business between her employer and the City?

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

Code Section 25-4-103(a), (c), (f)(i)(ii), (g)(ii), (h), (k)(i)(ii) and (p)(i)(ii) states:

"(a) 'Authority' means any component unit of a governmental entity.

(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 non-profit corporation or other such entity, association or organization receiving public funds.

(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) 'Governmental' means the state and all political entities thereof both collectively and separately, including but not limited to:

(ii) Municipalities.

(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.

(k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).

(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."

Code Section 25-4-105(3)(a) states:

"(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."

     The Commission formally adopts Advisory Opinions No. 93-032-E and No. 92-070-E in response to this request and by attachment incorporates them into this opinion.

     The establishment of historic preservation districts are authorized by Sections 39-13-1 et seq., 1972 Mississippi Code Annotated. These code sections provide that the districts shall have nine (9) member commissions appointed by their authorizing governing authorities. The district's commission members serve at the will and pleasure of their appointing governing authority and the district is funded by the governing authority. The commission members advise the governing authority on the designation of historic landmarks and landmark sites.

     A municipality's historic preservation commission for purposes of establishment and operation is similar to that of a municipality's planning and zoning commission or civil service commission, both of which are the respective subjects of the attached opinions. Therefore, the finding here is a historic preservation commission, like a planning and zoning commission or a civil service commission, is not a separate authority from its municipal governing authority.

     Based solely on the facts and circumstances presented herein, the Commission's opinion is that the historic preservation commission member as a "public servant" is prohibited from having a material financial interest in any business that is a contractor, subcontractor or vendor with the municipality of which she is an officer as set forth in the above cited Code Section 25-4-105(3)(a).

     A public servant violating the conflict of interest laws is subject to the penalties imposed by Code Sections 25-4-109 and 25-4-111, as well as, a civil action for damages and forfeiture of any pecuniary benefit received through the illegal contract as provided for by Code Section 25-4-113. The penalties that may be imposed by a circuit court upon a finding by clear and convincing evidence include removal from office and a civil fine of not more than $5,000.00.

     Should the commission member be reappointed after the expiration of the existing contract between her employer and the municipality, any future contract between her employer and the municipality during her term on the commission will result in a violation of Code Section 25-4-105(3)(a).
 
 

Ronald E. Crowe Executive Director