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 March 1, 1996.

May a former legislator within one year of his final term of office be employed by a construction company to assist in marketing, negotiating and lobbying when the construction company is a party to a lawsuit against the State concerning a construction project which the former legislator supported the expedited completion of during his term of office?

    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 entities are not addressed by this opinion.

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 25-4-101 states:

"The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the state and local governments."

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), (3)(e) and (5) 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.

(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.

(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information."

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

I served from January 1, 1993, to January 1, 1996, in the Mississippi Legislature.

A construction company is interested in employing me to assist in marketing, negotiating, lobbying, etc.

The construction company is a road construction and public works contractor doing business with a number of State agencies and political subdivisions. Among my duties would be negotiating/lobbying for the Settlement of a lawsuit between the construction company and the State. This lawsuit involves a project which was let before I took office. While in office, I lobbied for the expedited completion of the project in keeping with the wishes of my constituents.

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

    It would not as such be a violation of Constitutional Section 109 and Code Section 25-4- 05(2), both cited above, for the requestor to be employed by a construction company to assist in marketing, negotiating and lobbying within one (1) year of the end of his final term in the State Legislature, even though the construction company is contracting with state agencies and/or local governmental entities, such as counties and municipalities.

    However if any of these local governmental entities' contracts or state agencies' contracts with the construction company are to perform construction projects that were funded, in whole or in part, by the State Legislature during the requestor's term or that are to be funded, in whole or in part, within one (1) year after the requestor's final term, then the requestor would be in violation of Constitutional Section 109 and Code Section 25-4-105(2).

    The above is based on the Mississippi Supreme Court's decisions in both, Cassibry v. State, 404 So.2d 1360 (Miss. 1981, and Frazier v. State, 504 So.2d 675 Miss. 1987), in which it held that the passage of appropriation bills authorizing expenditures for state agencies or other public entities are necessary before the state agencies or other public entities can obligate the State and therefore are authorizations subject to Constitutional Section 109.

    The requestor also must be keenly aware of the above cited Code Section 25-4-105(3)(e) and (5).

    Code Section 25-4-105(3)(e) prohibits the requestor from performing any service for any business for compensation after termination of his office in relation to any case, decision, proceeding or application with respect to which he was directly concerned or personally participated during the period of his public service. Therefore if the requestor was concerned with or personally participated as a legislator in the lawsuit or the decision to file the lawsuit, then the requestor would be in violation of Code Section 254-l05(3)(e) if he is compensated by the construction company to now lobby the State Legislature to settle the case.

    A violation of Code Section 25-4-105(3)(e) is not limited to one (1) year following the end of the requestor' 5 term. A violation of this section could occur any time after the requestor's termination of his public service.

    Code Section 25-4-105(5) prohibits the requestor from intentionally using or disclosing any non-public information obtained by him through his legislative position that could result in a pecuniary benefit to him, the construction company or any other person.

    The issue presented by the requestor also must be viewed as it relates to Code Section 25-4-101, set forth above. This code section sets the tone for the conflict of interest laws as the Legislature's "Declaration of Public Policy." This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.

    Clearly, a former legislator's employment with a construction company that is contracting with governmental entities that receive funding from the State Legislature has the potential of creating suspicion among the public and reflecting unfavorably upon the state or local governmental entities, even though such funding may not violate Constitutional Section 109 and Code Section 25-4-105(2) as discussed above.
 

Ronald E. Crowe Executive Director