This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on August 2, 1996, basing its approval solely on the facts and circumstances stated herein.
May a setting member of the hoard of trustees of a county owned hospital resign his or her position and immediately accept the position of hospital administrator with the county owned hospital?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 entity's internal rules and regulations
The pertinent conflict of interest laws to be considered here are:
"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(f)(i)(ii), (g)(i)(v), (h), and (p)(i)(ii)(iii) states:
"(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) 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 provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
I am General Counsel for the County Hospital. I have been requested by the Chairman of the Board to seek an opinion concerning whether a setting Board of Trustee can resign his or her position and then become Hospital Administrator. A situation has arisen wherein the Hospital Administrator's position has become vacant by resignation and a current board member is interested in applying for the position.Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a setting member of the board of trustees of a county owned hospital from accepting the position of hospital administrator with the county owned hospital during the member's term or within one (1) year after the expiration of the member's term. The expiration of the member's term would be the date that the member resigned from the board of trustees.
The following illustrates the one (1) year prohibition. Should the member resign from the board of trustees on August 1, 1996, then the member could not be employed by the county owned hospital until August 1, 1997.
Ronald E. Crowe Executive Director