ADVISORY OPINION NO.95-1l8-E
 

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 November 10, 1995.

May former employees of a state agency become consulting firm employees when their employment is directly related to specific projects resulting from contracts between the consulting firm and their former state agency employer?

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(c), (e), (g)(v), (h), (1) and (p)(i)(ii)(iii) states:

 "(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 nonprofit corporation or other such entity, association or organization receiving public funds.

(e) 'Compensation' mean money or thing of value received, or to be received, from any person for services rendered.

(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.

(1) 'Pecuniary benefit' means benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain. Expenses associated with social occasions afforded public servants shall not be deemed a pecuniary benefit.
 
(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 funded 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(1), (2) and (3)(e) states:

"(1) No public servant shall use his official position to obtain pecuniary benefit for himself other than that compensation provided for by law, or to obtain pecuniary benefit for any relative or any business with which he is associated.

(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 thereot, authorized by any law passed or order made by any board of which he may be or may have been a member.

(e) Perform any service for any compensation for any person or business after termination of his office or employment is relation to any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated during the period of his service or employment."

This state agency negotiates contracts with Consultant Firms on a regular basis to perform certain professional functions. These contracts all contain a provision that prohibits the consult from hiring state agency personnel without specific approval. Recently in this regard, we have been asked by Consulting Firms to approve the use of personnel who have retired from the state agency for a period of time less than one year from the anticipated start date of these contracts.

We have ascertained that these former employees of the state agency had no direct or indirect involvement in or the selection of the specific Consultant or the decision to use a Consultant on the project, and that the only interest which they have in the consulting firm in that of an employee.

Given these facts we request an opinion as to whether or not there is a violation of the Ethics in Government Statutes (Section 25-4-101 et seq.) if these individuals are hired by the Consultant to work on these specific state agency projects?

Notwithstanding the above, the former state agency employees are prohibited by Code Section 25-4-105(3)(e), cited above, from performing any service for any compensation after termination of their public employment in relation to any case, decision, proceeding or application with respect to which they were directly concerned or in which they personally participated during the period of their public employment.

Therefore, Code Section 25-4-1 05(3)(e) prohibits the former state agency employees from being compensated for work on consulting contracts related to projects which they were directly concerned with or personally participated in while state employees.

In addition, it does not matter whether the former state agency employees were employed by the consulting firm within one year or more than one year from the date of their termination of employment with the state agency when considering whether there is or is not a violation of Code Section 25-4-1 05(3)(e).

The strict prohibitions preventing legislators, board members and/or other legislative or executive officers from having an interest in contracts which they or their boards authorize during their terms, or within one (1) year there after, are set forth in the above cited Constitutional Section 109 and Code Section 25-4-105(2). Constitutional Section 109 and Code Section 25-4-105(2) are not applicable to the facts and circumstances presented herein by the requestor. [Emphasis Added]

Furthermore, the former state agency employees would have been prohibited from using their public positions, prior to their retiring from the state agency, to obtain employment with the consulting firm. Such use of theirs public positions to obtain a pecuniary benefit would have violated the above cited Code Section 25-4-105(1).
 
 
 

Ronald E. Crowe Executive Director