OFFICIAL ADVISORY OPINION NO. 96-083-E
 
July 12, 1996

This Advisory Opinion concerns the following issues 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.

1. May a legislator's engineering firm through a joint venture with a design firm contract with a county to design a building that is partially funded by a state agency with monies appropriated by the Legislature prior to the legislator taking office?
2. May a legislator's engineering firm continue with its contract on a project when monies from a state agency appropriated by the Legislature that originally went to another project are later redistributed to the legislator's engineering firm's project?
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:

"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)(v), (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:
(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." 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.
A request for proposal to provide Architectural services for a multipurpose building in the County was received from a local design firm. The invitation to submit a joint venture with my firm listed as the structural engineers has been accepted provided there is no conflict of interest.
Funds from the State Agency were granted from the State to the County prior to my legislative service in 1996. I request that you advise me regarding the potential contract service to the County in my normal profession of structural engineers.
As an additional question, I am interested to know if there is any ethics violation when an ongoing project that contains State monies has the appropriated funds modified. Should funds from the State Agency not be used by a county to which a Grant has been awarded and the monies returned to the State are redistributed to a project on which I am a participant, am I party to an ethics violation?
The Commission formally adopts Advisory Opinion No. 95-070-E, with attachments, in response to this request and by attachment incorporates it into this opinion.

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

ISSUE 1. The legislator's engineering firm's contract with the county through the joint venture with the design firm is not prohibited by the conflict of interest laws if the state funds granted to the contract were appropriated by the Legislature prior to the beginning of the legislator's term.

ISSUE 2. The legislator does have a prohibited interest in any of his engineering firm's existing contracts should any state funds granted to those projects be appropriated or reappropriated by the Legislature during the legislator's term, or within one year after the expiration of his term. The legislator's interest by virtue of the appropriation process is prohibited by the above cited Constitutional Section 109 and Code Section 25-4-105(2).

If the redistributed funds are not reappropriated by the Legislature, then the above-mentioned violation would not occur.

The basis of the above opinions are the Mississippi Supreme Court's decisions in Cassibryv. v, 404 So.2d 1360 (Miss. 1981) and Frazier v. State ex rel Pittman, 504 So.2d 675 (Miss 1987)

In Cassibry, the Mississippi Supreme Court established that an appropriation bill authorizing the expenditures of a state agency was necessary before the state agency had authority to obligate the State to make payments of money, and therefore "authorized" the contract.

The Mississippi Supreme Court in Frazier stated, "The governmental bodies contracting with these [legislator] defendants could not have made payment under the contracts without these appropriations. These appropriation bills were law [Cassibry]. They were laws passed while these gentlemen served in the Legislature. Their contracts were made while they were in the Legislature. Thus, they squarely fit the prohibition of Constitutional Section 109."

The requestor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2) because neither removes the prohibited interest in a contract authorized by the Legislature by virtue of the appropriation process.