This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 3, 1996, basing its approval solely on the facts and circumstances stated herein.

1. May a county contract with Company A to construct a bridge when a former supervisor for the county was an employee of Company A and is now an employee of another company with the same owners as Company A when both employment's are within one year of the end of the former supervisor's term of office?

2. May a county pay past due invoices to Company A that were not paid while a former supervisor for the county was an employee of Company A if the former supervisor leaves his employment with Company A and is employed by another company with the same owners as Company A when both employment's are within one year of the end of the former supervisor's term of office?

    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:

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(c), (d), (f)(i)(ii), (g)(i), (h) and (p)(i) states:

"(c) 'Business' means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a non-profit corporation or other such entity, association or organization receiving public funds.

(d) 'Business with which he is associated' means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.

(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 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 by attachment incorporated into this opinion.

    The Commission formally adopts Advisory Opinion No. 96-039-E 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. As stated in the attached opinion, Constitutional Section 109 and Code Section 25- 4-105(2), both cited above, clearly prohibit a board member of a governmental entity from having an interest, directly or indirectly, during his or her term or for one year thereafter in any contract authorized by his or her board. [Emphasis added]

    However, a company other than Company A may employ the former supervisor without violating Constitutional Section 109 and Code Section 25-4-105(2), if the former supervisor has no other direct or indirect interest in Company A.

    Issue 2. If the former supervisor leaves his employment with Company A and has no other direct or indirect interest in Company A, than the conflict of interest laws would not prohibit the county's payments of the past due invoices.

    Whether or not Company A and the other company having the same owners and the same physical and mailing addresses are sufficient to cause the former supervisor to have a direct or indirect interest cannot be determined in this opinion. Such a determination would require an investigation and/or a review by a court of competent jurisdiction.

    Notwithstanding the above, these issues presented by the requestor must be viewed as they relate to Code Section 25-4-101, set forth above. This code section sets the tone for the conflict of interest laws as it is 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, the former supervisor being employed by the company that has the same owners and the same physical and mailing addresses as Company A has the potential of creating suspicion among the public and reflecting unfavorably upon the county. This is especially true regarding Issue 1 since Company A's bid was submitted while the former supervisor was still employed by Company A.
 
 

Ronald E. Crowe Executive Director