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 an engineering firm contract with the city when the engineering firm is located in a building that it formerly leased from one of the city's aldermen?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), 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:
(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.
(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 provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
In reference to your response of July 15, 1996, to the City Attorney concerning my leasing property to someone who contracts with the City.
As of this date I have sold the property and divested myself of said property.
As you will remember, I discussed this with you on this date and you recommended that I make the inquiry official.
Would you please consider my new status at your next meeting of the Ethics Commission and notify the City of your decision.The Commission formally adopts Advisory Opinion No. 96-082-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.
Constitutional Section 109 and Code Section 25-4-105(2),
both cited above, prohibit the alderman in question from having an interest,
direct or indirect, in any contract authorized by the board
of aldermen of which he is a member.
However, if the alderman does fully and completely divest himself of any interest in the property being leased by the engineering firm, then Constitutional Section 109 and Code Section 25- 4-105(2) would not prohibit the city's contracting with the engineering firm leasing the property as the alderman would no longer have a prohibited interest in the contract.
A full and complete divesting of any interest in the property must include the alderman not having a deed of trust, or other security interest, on the property and/or not being paid, directly or indirectly, as a mortgagee on the property.
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). 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