Mec 1995 Adv Opi no 95-070-E

ADVISORY OPINION NO. 95-070-E June 9, 1995

This Advisory Opinion concerns the following issues 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 the law firm of a newly elected member of the Legislature:

1. continue to accept representation of the Department of Transportation in eminent domain proceedings after the law partner/legislator's election; and

2. conclude pending litigation in which it is representing the Department of Transportation in eminent domain proceedings that were filed prior to the law partner/legislator's election?

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 state 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.

I am writing to request an ethics opinion on the following matter:

Our law firm has represented the Department of Transportation Eminent Domain proceedings for several years. Recently a member of the law firm was elected to the State Legislature and at the time of his election the firm had pending court cases wherein it represented the Department of Transportation in eminent domain proceedings. Further, the firm has been recently asked to represent the Department of Transportation in additional eminent domain proceedings. To avoid running afoul of conflicts of interest laws we request an opinion on the following:

1. Whether our law firm may accept representation of the Department of Transportation in eminent domain proceedings, if not the reasons therefore; and

2. If it would constitute a conflict of interest whether or not the firm may conclude pending litigation filed prior to the firm member's election to the State Legislature.

We would appreciate a response at the earliest possible date. Therefore, if an opinion is already written on this matter, we would appreciate it if you would forward us a copy.

Your prompt attention to this matter will be appreciated.

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."

The Commission formally adopts Advisory Opinions No. 93-091-E and No. 95-053-E, with attachments, in partial response to this request and by attachment incorporates them into this opinion.

Based solely on the facts and circumstances presented by the requestor, the Commission offers the following opinions on the above issues.

Issue 1. The Commission's opinion is that any future contracts between the legislator's law firm and the Department of Transportation entered into during his term, or for one year there after, results in the legislator having a direct interest in a contract authorized by the Legislator which is prohibited by the above cited Constitutional Section 109 and Code Section 25-4-105(2).

Issue 2. The Commission's opinion is that any contracts between the legislator's law firm and the Department of Transportation existing prior to his term do not result in the legislator having a prohibited interest in the existing contracts if the state funds used to compensate the law firm for its legal representation were appropriated prior to the beginning of the legislator's term.

Not withstanding the above, the legislator does have a prohibited interest in any existing contracts between his law firm and the Department of Transportation should the state funds used to compensate the law firm for its legal representation be appropriated by the Legislature during the legislator's term, or within one year after the expiration of his term. The legislator's interest by virtue of the appropriation process is prohibited by Constitutional Section 109 and Code Section 25-4-105(2).

Therefore, the law firm would not be prohibited from receiving any payments from the Department of Transportation that were encumbered, and as such, considered a liability under the Department's budget for the 1994-95 fiscal year which ends June 30, 1995.

The basis of the above opinions are the Mississippi Supreme Court's decisions in Cassibry v. State, 404 So.2d 1360 (Miss. 1981) and Frazierv. State ex rel Pittman, 504 So.2d 675 (Miss. 1987).

In Cassibry, the Mississippi Supreme Court established that an appropriation bill authorizing the expenditures of a state agency was necessary before the state agency had authority to obligate the State to make payments of money, and therefore "authorized" the contract.

The Mississippi Supreme Court in Frazier stated, "The governmental bodies contracting with these [legislator] defendants could not have made payment under the contracts without these appropriations. These appropriation bills were law [Cassibry]. They were laws passed while these gentlemen served in the Legislature. Their contracts were made while they were in the Legislature. Thus, they squarely fit the prohibition of Constitutional Section 109."

The requestor is cautioned to advise the legislator that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2) because neither removes the prohibited interest in a contract authorized by the Legislature by virtue of the appropriation process.

Ronald E. Crowe Executive Director