This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on November 1, 1996, basing its approval solely on the facts and circumstances stated herein.
May an engineer that is a part-time city employee contract with the city to perform a construction project at the city airport?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:
"(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.
(1) '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.Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.(k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:
(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).(p) 'Public servant' means:(i) Any elected or appointed official of the 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(3)(a) states:"(3) No public servant shall:
(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent."
I am the City Attorney and I have been requested by the Mayor to ask you for an ethics opinion.
Several months ago, the city had its engineer retire, and since that time, different engineers have been involved in certain projects, but one certain engineer works only a few hours a week but does do engineering work for the city.
Construction work was needed recently at the city airport, and my question is whether or not it would be ethical for the part time engineer to accept employment, not as an engineer but as a contractor, in regard to the roofing work at the airport.
It is my understanding that a full time employee of the city may not accept side jobs from the city, and my question is whether or not the part time engineer can accept part time jobs from the city which are not engineering jobs.In addition to the requestor's letter, the Mayor's office advised the Commission's staff that the engineer is an employee of the city board, although part-time. As with other city employees, the city regularly pays the engineer with the proper withholdings and available employee benefits. The Mayor's office also advised that the construction work is what would be considered a public construction project under the state purchasing laws requiring a separate contract approved by the city's board.
Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
Code Section 25-4-105(3)(a), cited above, prohibits a public servant from being a contractor or having a material financial interest in a company that is a contractor with the governmental entity he or she serves as employee.
Code Section 25-4-103(p)(ii), cited above, makes no distinction between a full-time and a part-time employee. As a city employee, the engineer is a public servant under the definition in Code Section 25-4-103(p)(ii).
Therefore, Code Section 25-4-105(3)(a) prohibits the engineer from being a contractor with the city or having a material financial interest in a company that is a contractor with the city. This prohibition continues as long as the engineer remains a part-time employee of the city.
Ronald E. Crowe Executive Director