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 4, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May a city councilman be employed by a private, non-profit organization holding contracts with the city which are authorized by the city council?

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:

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(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) ‘Government’ 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.
 

I am writing to request an advisory opinion regarding any conflict between my services as a city councilman and employment with the local community action agency [CAA].

The city I serve as councilman currently has two contractual relationships with the CAA. By contract, the CAA provides counseling for first-time home buyers, and will construct affordable housing under a separate contract. From time to time, the city has provided support for the CAA head start program.

The management position I have been offered may or may not provide any supervisory responsibility over the contracts between the city and the CAA. If I recuse myself from any votes regarding the CAA and the city, is this offer of employment legal?

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

Section 109, Miss. Const. of 1890, and Section 25-4-105(2), Miss. Code of 1972, quoted above, prohibit a city councilman from having an interest in a contract approved by the city council during his term or for one year thereafter. If the requestor becomes employed with the CAA, he will have an interest in its contracts with the city, whether he has supervisory responsibility over the contracts or not. Assuming the current contracts were approved, renewed or otherwise authorized by the council during this requestor’s term, he would be in violation of Constitutional Section 109 and Code Section 25-4-105(2) immediately upon his employment with the CAA. Therefore, the requestor is absolutely prohibited from being employed by the CAA during his term or for one year thereafter.

Moreover, a councilman cannot avoid a violation of Constitutional Section 109 and Code Section 25-4-105(2) by recusing himself from votes regarding the CAA. Violations of those sections do not require any action by the individual in question. When a council member has an interest in a contract before the council, all that is required for a violation is authorization of the contract by the council. Participation by the individual member is irrelevant to Constitutional Section 109 and Code Section 25-4-105(2). Other provisions of the Ethics in Government Laws could also prohibit the contemplated employment, but discussion of those additional prohibitions would be cumulative and unnecessary.
 

Scott Rankin
Executive Director