May a trustee of a county economic development district bid on a construction project being financed by bond proceeds from the sale of general obligation bonds issued by the county board of supervisors at the request of the county economic development district?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.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 25-4-103(g)(v), (h) and (p)(i)(ii)(iii) states:"(g) 'Government' means the state and all political entities thereof, both collectively and separately, including but not limited to:(v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.(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, direct or indirect, 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 timed by 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."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.On April 18, 1995 the County Economic Development District requested the Board of Supervisors of the County to issue general obligation bonds in an amount not to exceed Five Million Dollars ($5,000,000) under the authority of §19-5-99, Miss. Code of 1972, as amended. There are nine trustees appointed by the Board of Supervisors serving on the County Economic Development District. The trustees receive no compensation for service on the Economic Development District. All trustees present voted for the aforesaid resolution, including a local building contractor who desires to bid on a construction project being financed with the bond proceeds.The County has sold Five Million Dollars ($5,000,000) general obligation industrial bonds and is currently proceeding to advertise for the construction of a warehouse facility to be utilized by a household products industry. The bond indebtedness will be retired through the receipt of lease payments from the household products industry.One trustee serving on the County Economic Development District is a local building contractor and desires to bid on the warehouse facility when bids are received on July 25, 1995. Our specific inquiry relates to whether a bid by a local contractor serving as a trustee for the County Economic Development District violates §25-4-101 et seq., Miss. Code of 1972, Ann. and §109 of the Mississippi Constitution of 1890, or any other applicable statute of Mississippi Ethics laws.The Commission formally adopts Advisory Opinion No. 91-083-E in response to this request and by attachment incorporates it into this opinion.Based solely on the facts and circumstances provided by the requestor, the Commission's opinion is that the acceptance of the trustee's bid will result in the trustee having an interest in a contract authorized by the county economic development district board in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2).
As pointed out in the attached opinion, Code Section 19-5-99, subsection (4), provides that a board of supervisors may issue bonds for a county economic development district "upon receipt of a resolution duly adopted by the trustees of such district."
Without the resolution passed by the trustees of the county economic development district, the board of supervisors would be unable to proceed with the issuance of the bonds, and therefore, unable to request bids and award the contracts to be funded with the bond proceeds.
The requestor is cautioned to advise the trustee that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2). Even without the trustee's vote, the authorization by the trustee's board nonetheless results in a contract in which the trustee has a prohibited interest.
The trustee is prohibited from having an interest in contracts authorized by the county economic development district board during his or her term or for one (1) year after the expiration of such term.
Ronald E. Crowe Executive Director