Advisory Opinion Docket #97-138-E <TITLE> </HEAD> <BODY TEXT="#000000" BGCOLOR="#FFFFFF" LINK="#0000FF" VLINK="#551A8B" ALINK="#FF0000"> <CENTER> <B> <U> OFFICIAL ADVISORY OPINION NO. 97-138-E </U> </B> </CENTER> <CENTER> November 7, 1997 </CENTER> <P> 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 7, 1997, basing its approval solely on the facts and circumstances stated herein. <UL> <B> May a chancery court judge lease office space to a state agency if </B> <BR> <B> the chancery court judge's bid to provide the office space is determined </B> <BR> <B> by the state agency to be the best bid? </B> </UL> State law restricts the Mississippi Ethics Commission to interpreting and issuing opinions on Sections <a href="http://www.mscode.com/statutes/25/004/0101.htm">25-4-101</a> through <a href="http://www.mscode.com/statutes/25/004/0119.htm">25-4-119</a>, 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. <P> The pertinent conflict of interest laws to be considered here are: <P> Code Section <a href="http://www.mscode.com/statutes/25/004/0103.htm">25-4-103</a> (a), (f)(i)(ii), (g)(iv)(v), (h) and (p)(i)(ii)(iii) states: <P> "(a) 'Authority' means any component unit of a governmental entity. <P> (f) 'Contract' means: <P> (i) Any agreement to which the government is a party; or <P> (ii) Any agreement on behalf of the government which involves the payment of public funds. <P> (g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to: <P> (iv) All courts; and <P> (v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds. <P> (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> (p) 'Public servant' means: <P> (i) Any elected or appointed official of the government; <P> (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 <P> (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." <P> Code Section <a href="http://www.mscode.com/statutes/25/004/0105.htm">25-4-105</a> (3)(a) and (4)(b) states: <P> "(3) No public servant shall: <P> (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. <P> (4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative: <P> (b) May be a contractor or vendor with any authority of the governmental entity other than the 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 or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent where such contract is let to the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received or where the goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws." <P> Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion. <P> I am requesting an advisory opinion from the Ethics Commission concerning § the applicability of Mississippi Code <a href="http://www.mscode.com/statutes/25/004/0105.htm">25-4-105</a> to the following fact situation: <P> The County Department of Probation and Parole, a division of the Mississippi Department of Corrections, is looking for office space to lease. They have published once for bids, but received no acceptable bids. They are currently republishing for bids, and have requested that I submit a bid concerning the lease of a building I own located adjacent to the court house. I am an elected state official, holding the office of Chancery Court Judge. § The Probation and Parole office is a state agency. Although <a href="http://www.mscode.com/statutes/25/004/0105.htm">25-4-105</a> (3)(a) appears to prohibit a contract between a state elected official and a state § agency, there may be an exception as contained in <a href="http://www.mscode.com/statutes/25/004/0105.htm">25-4-105</a> (4)(b) when the elected official has gone through a competitive bidding process, as exists in this situation. Please review the situation and advise me on whether an exception would apply due to the competitive bidding process. <P> The Commission formally adopts Advisory Opinion No. 96-132-E in response to this request and by attachment incorporates it into this opinion. <P> Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows. <P> The requestor is correct in the determination that Code Section <a href="http://www.mscode.com/statutes/25/004/0105.htm">25-4-105</a> (3)(a), cited above, does prohibit a chancery court judge from contracting with a state agency by way of a real property lease agreement. <P> The requestor is also correct in the determination that Code Section <a href="http://www.mscode.com/statutes/25/004/0105.htm">25-4-105</a> (4)(b) provides an exception to the prohibition set forth in Code Section <a href="http://www.mscode.com/statutes/25/004/0105.htm">25-4-105</a> (3)(a). The exception is "where such contract is let to the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received or where the goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws." As set forth in the attached advisory opinion, the term "goods or services" as used in Code Section <a href="http://www.mscode.com/statutes/25/004/0105.htm">25-4-105</a> (4)(b) and (d) does not include the selling, leasing or renting of real property. However, the term "goods and services" as used in Code Section <a href="http://www.mscode.com/statutes/25/004/0105.htm">25-4-105</a> (4)(b) applies only to the "two (2) or fewer commercial sources exception" and not to the "after competitive bidding and three (3) or more legitimate bids are received" exception. <P> Therefore, Code Section <a href="http://www.mscode.com/statutes/25/004/0105.htm">25-4-105</a> (3)(a) does not prohibit the requestor from leasing office space to the Probation and Parole office if the lease contract is entered into after at least three or more legitimate bids are received and a determination is made that the requestor's bid is the lowest and best bid. <BR> <P> Ronald E. Crowe <BR> Executive Director </BODY> </HTML>