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 law firm be appointed by the state bond commission as bond counsel for a bond issue that includes a state agency when a member of the law firm formally served as a commission member of the state agency within one year of the law firm's appointment?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 25-103(f)(i)(ii), (g)(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:
(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)) '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 in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of this opinion.
In addition to the attached facts and circumstances, the
requestor has advised that the law firm's contract to serve as bond counsel
is with the state bond commission and not the state agency.
Based solely on the facts and circumstances presented
by the requestor, the Commission's opinion is as follows.
The state agency's board must have authorized a contract during the former member's term, or within one year thereafter, that allowed the former member's law firm to be chosen as bond counsel for the bond issue including the state agency's project(s) for a violation of Constitutional Section 109 and Code Section 105(2), both cited above, to occur.
The state bond commission authorizes the actual contract to serve as bond counsel. Therefore, the question is whether a discretionary action by the state agency's board occurred in order for the state bond commission to be able to contract with the former member's law firm.
The state agency's board had to approve the budget that included the request for bond funds that was submitted to the Legislature. In addition, the state agency's board has to pass a resolution requesting the state bond commission sell the bonds to finance the project(s).
Without the budget request and the resolution, the bonds could not be sold, therefore, the state bond commission could not appoint bond counsel.
Therefore, Constitutional Section 109 and Code Section 25-4-105(2) prohibit the law firm of a former state agency board member from being bond counsel on a bond issue that includes the state agency's project(s) within one year of the end of the former member's term.
Ronald E. Crowe Executive Director