ADVISORY OPINION NO. 95-120-E
 
November 10, 1995
 

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 a county board of supervisors lease a building to house a local library when the building is owned by a member of the county library advisory board of trustees?
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 entities 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(a), (f)(i)(ii), (g)(i)(v), (h) and (p)(i)(ii)(iii) states:
 
          "(a) 'Authority' means any component unit of a governmental entity.
 
(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:

(i) Counties; and
(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, 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; 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) and (3)(a) 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.
          (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."
 
Pertinent facts and circumstances provided by the requestor in the form of the requestor's letter dated October 17, 1995, absent identifying data, are attached hereto and considered part of this opinion. Additional documentation enclosed with the requestor's letter is not attached hereto but is available for review in the Commission's office absent identifying data.

Based solely on the facts and circumstances presented in the requestor' 5 letter, the Commission offers the following opinion.

The members of a local library advisory board of trustees are within the "authority" of the governmental entity appointing them which in this case is a county board of supervisors.

Therefore, a local library trustee's leasing of a building to the county board of supervisors which appointed the trustee in prohibited by the above cited Code Section 25-4-105(3)(a). The local library trustee is an officer of the county and as such is prohibited from being a contractor, subcontractor or vendor with the county.

Furthermore, the local library advisory board of trustees' approval or authorization of the lease contract or of the funding of the lease contract would result in the local library trustee/lessor being in violation of Constitutional Section 109 and Code Section 25-4-105(2).

The requestor is cautioned to advise the board members that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2). Even without a board member's vote, the authorization by the member's board nonetheless results in a contract in which the board member has a prohibited interest.
 
 
 
 

Ronald E. Crowe Executive Director