1. May a corporation employing a county supervisor within one year of the end of the county supervisor's term:a. continue to contract with the county to provide materials for road and bridge repairs if it is the low bidder?b. provide limestone to the county under a purchase order issued prior to the end of the county supervisor's term but which will be delivered and paid for after the county supervisor became an employee of the corporation?c. sell materials under term bids approved by the county subsequent to the end of the county supervisor's term but which will be ordered and paid for after the county supervisor became an employee of the corporation?2. May a corporation that is solely owned by four stockholders who also are the minority stockholders in the corporation employing the county supervisor within one year of the end of the county supervisor's term:a. contract with the county to provide materials for road and bridge repairs if it is the low bidder?b. provide limestone to the county under a purchase order issued prior to the end of the county supervisor 5 term but which will be delivered and paid for after the county supervisor became an employee of the corporation?c. sell materials under term bids approved by the county subsequent to the end of the county supervisor's term but which will be ordered and paid for after the county supervisor became an employee of the corporation?3. May a corporation whose president and majority stockholder is the brother of a county supervisor contract to provide materials to the county that the supervisor is elected to serve?State law restricts the Mississippi Ethics Commission 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, this opinion does not address the Mississippi laws outside the Commission's jurisdiction nor the governmental entities' internal rules and regulations.
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 25-4-101 states:"The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the state and local governments."Code Section 25-4-103(c), (f)(i)(ii), (g)(i), (h), (p)(i)(ii)(iii) and (q) 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 non-profit corporation or other such entity, association or organization receiving public funds.(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.(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.(q) 'Relative' means the spouse, child or parent."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 in the form of the requestor's letter, absent identifying data, are attached hereto and by said attachment are incorporated into this opinion.The Commission formally adopts Advisory Opinion No. 92-013-E and No. 95-146-E in 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's opinion is as follows.
Issue 1. Constitutional Section 109 and Code Section 25-4-105(2), both cited above, clearly prohibit a board member of a governmental entity from having an interest, directly or indirectly, during his or her term or for one year thereafter in any contract authorized by his or her board. [Emphasis added]
The former county supervisor as an employee of A.B.C. Corporation has a prohibited interest in all contracts with A.B.C. Corporation authorized by the county during his term and for one year thereafter. Therefore, the former county supervisor has a prohibited interest in all contracts with A.B.C. Corporation authorized by the county for road and bridge repair during the year after the end of his term; in the limestone contract with A.B.C. Corporation entered into during his term of office; and in the purchases made from A.B.C. Corporation under the term bids accepted during the year after the end of his term.
Issue 2. Since the former supervisor is not an employee of D.E.F. Corporation, he would not as such have an interest in its contracts.
Notwithstanding the above, the requestor is advised to review the attached Advisory Opinion No. 92-013-E. As set forth in the attached opinion, should A.B.C. Corporation, the employer of the former supervisor, be a subcontractor for D.E.F. Corporation on any contracts authorized by the county or should A.B.C. Corporation be providing materials to D.E.F. Corporation that can reasonably be expected to become a part of any contracts with D.E.F. Corporation authorized by the county, then the former supervisor as an employee of A.B.C. Corporation would have a prohibited interest in such contracts that were entered into with D.E.F. Corporation during his term or for one year thereafter.
Issue 3. In response to this issue, the requestor is referred to Issue 1 of the attached Advisory Opinion No. 95-146-E.
As stated in the attached opinion, a supervisor's county may do business with the supervisor's brother's company as a brother is not a "relative" under the Ethics in Government laws' definition set forth in the above cited Code Section 25-4-103(q).
Notwithstanding the above, this issue presented by the requestor also must be viewed as it relates to Code Section 25-4-101, set forth above. This code section sets the tone for the conflict of interest laws as it is the Legislature's "Declaration of Public Policy." This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.
Clearly, a supervisor's county's purchasing of supplies from the supervisor's brother's company has the potential of creating suspicion among the public and reflecting unfavorably upon the county.
Ronald E. Crowe Executive Director