OFFICIAL ADVISORY OPINION NO. 96-115-E
 

This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 12, 1996, basing its approval solely on the facts and circumstances stated herein.

May a school district purchase safety equipment to be installed on a table saw used in the district's vocational center when the only company available to provide the safety equipment is owned by a member of the school board?

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 25-4-103(c), (d), (f)(i)(ii), (g)(iii), (h) and (p)(i)(ii)(iii) 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:

(iii) All school districts.

(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 254--105(2), (3)(a) and (4)(d) 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.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(d) May be a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which is a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent: (i) where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws; or (ii) where the contractual relationship involves the further research, development, testing, promotion or merchandising of an intellectual property created by the public servant."

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 or the public servant's business from being a vendor with the public servant's governmental entity. However, Code Section 25-4-105(4)(d) provides a limited exception to this prohibition.

Code Section 25-4-105(4)(d)(i) provides that a public servant may be a vendor with his or her governmental entity "where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws."

It could be strongly argued that the exception set forth in Code Section 25-4-105(4)(d)(i) does apply to this instance.

However, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, also apply to this circumstance.

Constitutional Section 109 and Code Section 25-4-105(2) 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 there after in any contract authorized by his or her board.

In Frazier v. State, 504 So. 2d 675 (Miss. 1987), the Mississippi Supreme Court held that any statutory language creating an exception to Constitutional Section 109 was unconstitutional.

In addition, the exceptions found in Code Section 25-4-105(4) apply only to prohibitions set forth in Code Section 25-4-105(3) and do not apply to Code Section 25-4-105(2).

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) would prohibit the school board member's company from selling the safety equipment to the school district which he serves.

The Court in Frazier discussed the absolute prohibition provided in Constitutional Section

109. The Court stated, "As noted in Noxubee County Hardware Co., supra; the transgression test is intended to be mechanistic and objective, and motives and intentions of persons who violate it are immaterial. Its purpose is to remove any temptation to invade its proscription.. .. It is also a self- executing section, and more specific than many, perhaps most, constitutional provisions. It prohibits an individual having an interest in a contract when he as a public officer served on the official body which enabled the contract to come into being. It is that simple. Being self-executing, its provisions cannot be modified or encroached upon by the Legislature."

The requestor is cautioned to advise the board member that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2). Even without the 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.

Ronald E. Crowe Executive Director