This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on June 13, 2003, basing its approval solely on the facts and circumstances stated herein.
 

May a planning and development district employ a member of a Workforce Board immediately upon the member resigning from the Workforce Board when the planning and development district has been contracted with to administer the Workforce program?

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:

Code Section 25-4-103(f)(i)(ii), (g)(i)(v), (h), (o) and (p)(i)(ii)(iii) 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:

 
(i) Counties; and
 
(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.

(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.

(o) ‘Public funds’ means money belonging to the government.

(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(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.

I am Executive Director of a Planning and Development District, Inc. (PDD) headquartered in Mississippi.  PDD is a private, non-profit corporation working in six counties and thirty-five municipalities and charged with providing technical assistance to improve the economy of our area.  As such, we operate numerous programs under contract from the State of Mississippi.  We also provide supervision and administration for various other program such as CDBG, EDA, FmHA, and Rural Development.

Since the inception of Workforce Act, PDD has been contracted with to administer Workforce in fourteen counties of our area, including the six counties it serves.

Workforce is policy governed by a Local Elected Officials Board.  This Board consists of one county supervisor from each of the fourteen counties.  These officials elect a Workforce Board which makes actual funding decisions based upon state allocations and funding requests.  The overall everyday activities are provided by a staff from PDD who are full-time based upon the PDD contract.  They are employees of and answer to the Board of Directors of PDD and its Executive Director.

A question has arisen as to a potential conflict.  Can PDD hire a member of the Workforce Board, provided the person resigns from the Board?

The contract PDD has is with the Local Elected Officials Board and funds are provided by the County Board of Supervisors as the intermediary.

Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.

Code Section 25-4-105(2), cited above, prohibits a public servant from having an interest, direct or indirect, during his term or within one (1) year after his term, in any government contract authorized by any board of which he may be or may have been a member. [Emphasis added to bold text]

It is this Commission’s finding that the Workforce Board is a governmental instrumentality and that its members are public servants for purposes of the Ethics in Government Law, including Code Section 25-4-105(2).

 
The Workforce Board’s authority to administer the Workforce Investment Act funds, i.e., making actual funding decisions based upon state allocations and funding requests, results in the Workforce Board being part of the contract authorization process. Therefore, if the member in question was on the Workforce Board at the time the described contract with the Planning and Development District was authorized, then Code Section 25-4-105(2) will prohibit him from obtaining an interest in the contract by way of his employment with the Planning and Development District for one full year after his resignation from the Workforce Board.¹

The requestor is cautioned to advise the board member that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2).  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.
 
 

Scott Rankin
Executive Director
 

¹ The Mississippi Supreme Court, in Frazier v. State, 504 So. 2d 675 (1987), held that an order of a public official’s board that authorizes or appropriates funds that directly or indirectly benefit the public official through a governmental contract is part of the contract authorization process.