This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on October 4, 1996, basing its approval solely on the facts and circumstances stated herein.
May an individual's business continue to sell to a municipality if the individuals elected to public office in this municipality?Your opinion request to the Office of the Attorney General dated September 18, 1996, was referred by that Office to the Mississippi Ethics Commission on September 20, 1996, as your request involves the above issues that concern the Mississippi conflict of interest laws.
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), (i) and (p)(i)(ii)(iii) states:
"(f) 'Contract' means:
(i) Any agreement to which the government is a party; or
Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.(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.(1)) '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(2) and (3)(a) 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:
(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."
Please issue an opinion relative the following question:
If an individual owns and operates a business in a City, and the City purchases goods from this business on a monthly basis, would there be a conflict of interest for the owner of the business to run for public office in this City/Town?Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
It is not a violation of the conflict of interest laws for a business owner to seek a municipal elected office when his or her business sells goods to the municipality. However, should the business owner be elected, then the conflict of interest laws set forth above would prohibit his business from selling to the municipality.
If the business owner is elected to either the positions of mayor or board member, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibits his or her business from selling to the municipality during his or her term and for one year thereafter. Also, Code Section 254-105(3)(a), cited above, prohibits a mayor or board member's business from being a vendor with the governmental entity he or she serves.
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) and (3)(a). Even without a 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.
If the business owner is elected to a position such as marshal or city clerk, Code Section 25-4- 105(3)(a) prohibits such an officer's business from being a vendor with the governmental entity he or she serves. This prohibition applies for as long as the business owner remains an officer of the governmental entity.
Ronald E. Crowe Executive Director