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 February 8, 1996.

    May a county enter into a personal services contract with a former county employee?

    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 governmental entity are not addressed by this opinion.
 

The pertinent conflict of interest laws to be considered here are:

Code Section 25-4-103(f)(i)(ii), (g)(i), (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.

(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 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)(e) state:

"(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:

(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."

    Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.

A former county employee officially retired thus vacating his position as Director of MIS for the County Board of Supervisors. In light of the former county employee's expertise and experience in regards to the County's Data processing operations, we are entertaining the possibility of entering into a contractual agreement with him to provide services on an as needed basis.

Due to the fact that State Statute 25-4-105 Subsections 2, and 3e, prohibits governmental entities, including Counties, from contracting for services with certain classes of employees/public servants within one year after the employee/public servants term of employment ends, we are requesting an official opinion as to whether or not the County would be in violation of this Statute if a contract was rendered to the former county employee within one year of the former county employee's resignation.

    Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.

    The county is not prohibited by the conflict of interest laws from contracting with a former employee to provide personal services as described in the requestor' 5 letter.

    Code Section 25-4-105(3)(d), cited above, prohibits a public servant from being employed by persons or businesses after termination of his or her public employment in relation to any case, decision, proceeding or application with respect to which the public servant was directly concerned or in which the public servant personally participated during his or her public employment. However, Code Section 25-4-105(3)(d) does not prohibit a governmental entity from contracting with a former public servant of the governmental entity to provide personal services as described in the requestor's letter.

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]

The requestor's letter states that the former employee has officially retired. Therefore, the Commission advises the requestor to contact the Public Employees' Retirement System [PERS] about its rules and regulations concerning a governmental entity contracting with a former employee that has retired as a member of PERS.
 
 

Ronald E. Crowe Executive Director