This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 12, 1996, basing its approval solely on the facts and circumstances stated herein.
May an engineering firm contract with the city when the engineering firm is located in a building leased from one of the city's aldermen?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)(ii), (h), and (p)(i) 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:(ii) Municipalities.
(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."
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.
May a member of the Board of Aldermen vote on a contract between the City and an Engineer who is seeking to be employed by the City when the Engineer is a tenant of the Board of Aldermen member?
On the 1st of June of this year, the City Engineer announced his retirement. Since that time the City has not replaced him, but it has rather adopted a procedure, on an interim basis whereby an engineering firm will be hired for each job which comes up for consideration by the city.
At a recent board meeting there were two projects which came up requiring engineering services, and on both of these projects, Firm A was considered along with Firm B. On one of those projects Firm A was selected and on the other project by a vote of 5 to 2, Firm B was selected. Soon after the selection of Firm B the mayor vetoed that selection and at the meeting which followed there was a motion made to override the mayor's veto. however, before the motion was made, the mayor requested that the Alderman leasing the building to Firm B leave the room since Firm B rents a building from him.
It develops that Firm B rented the building from the Alderman in May of 1996, after negotiations began in March of 1996. On both votes, including the motion to override the mayor's veto, the Alderman leasing to Firm B was the individual who nominated Firm B as the firm to be hired.
My question is set forth above, and I would like your opinion as to whether or not the Alderman leasing to Firm B should be allowed to vote where Firm B is involved due to the fact he is their landlord and they are his tenant.
I am the City Attorney, and the board specifically requested that I seek an advisory opinion from you to determine the ethical consequences of a vote by the Alderman leasing to Firm B where Firm B is involved.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 the alderman in question from having an interest, direct or indirect, in any contract authorized by the board of aldermen. The alderman's leasing of the building to the engineering firm for use as its business location is such a prohibited interest. Therefore, the city may not contract with the engineering firm during the alderman's term, and for one year thereafter, while the engineering firm is the alderman's tenant.
The requestor is cautioned to advise the board member that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2). Even without the 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