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 June 9, 1995.

May a municipality contract with a cellular telephone company through an independent agent to provided services to the municipality when another independent agent for that same cellular telephone company is a council member of the municipality?

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 a part of this opinion. The referenced agent agreement because of its size is not attached but is available for review, absent identifying data, in the Commission's office.
I am requesting an official advisory opinion; here are the facts.

1) A security service, of which I am president, is an independent agent of a cellular telephone company. (see enclosed agent agreement)

2) The city, of which I serve as alderman, utilizes the cellular service of the cellular telephone company previous to my term of office.

3) The agreement is a month to month agreement. The contract term is expired.

4) My security service was never the agent of record or receives any remuneration from the cellular telephone company as a result of the service it provides the city.

5) There are only two companies which provide similar services in this area.

6) The competitive company has similar pricing though more costly.

I request your opinion concerning this matter. Is it ethical for the city to continue its agreement with the cellular company?
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 25-4-1 03(f)(i)(ii), (g)(ii), (h) and (p)(i) states:

"(1) '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.

(p) 'Public servant' means:

     (i) Any elected or appointed official of 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."

     The Commission formally adopts Advisory Opinion No. 94-073-E in response to this request and by attachment incorporates it into this opinion.
     Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is the council member/independent agent has an indirect, if not direct, interest in the contract between the municipality and the cellular telephone company in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2).
     This funding is based on the tenet that as an independent agent of a cellular telephone company operating in a particular service area that has limited competition, in this case two cellular telephone companies, the municipal council member has an interest in the overall financial success of the company in that service area. The larger the market share the cellular telephone company has in the service area the more likely its future share will grow which directly benefits all its independent agents. Therefore, the municipal council member has an indirect, if not a direct, interest in all the cellular telephone company's contracts in the service area.
     The Commission has consistently held that neither a refusal nor an abstention prevents a potential violation of Constitutional Section 109 or Code Section 25-4-105(2). While a vote may be removed, the prohibited interest in a contract authorized by the governmental board continues.
 

Ronald E. Crowe Executive Director