This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on October 1, 2004, basing its approval solely on the facts and circumstances stated herein.

 
May an independent contractor of a municipality perform other work for the municipality under a separate contract?

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(c), (h), (k)(i)(ii)(iii)(iv) 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  nonprofit corporation or other such entity, association or organization receiving 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.

(k) ‘Material financial interest’ means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other.  Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00);

(iii) The income as an employee of a relative if neither the public servant or relative is an officer, director or partner in the business and any ownership interest would not be deemed material pursuant to subparagraph (i) or (ii) herein; or

(iv) The income of the spouse of a public servant when such spouse is a contractor, subcontractor or vendor with the governmental entity that employs the public servant and the public servant exercises no control, direct or indirect, over the contract between the spouse and such governmental entity.

(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(3)(a) states:
 

“(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.”

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
 

Per our conversation, I am informing you that I do contract work for the City.  They do not furnish any benefits.

I plan to place a bid for a house to be built at the city lake.

A member of the Commission’s staff has discussed this matter with the requester and with the city’s mayor in separate telephone conversations. The requestor serves as a part-time, contract building inspector for the municipality. Terms of that contract as described by the requestor and mayor are mentioned below. The requestor wishes to bid on a separate contract to be let by the city for a small public construction project.

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

Section 25-4-105(3)(a), Miss. Code of 1972, quoted above, prohibits a public servant from being a contractor with his own governmental entity. The preliminary question presented here is whether the requestor is a “public servant,” as that term is defined in Section 25-4-103(p), Miss. Code of 1972, also quoted above. If the requestor is a public servant, he will be prohibited from contracting with the municipality on this construction project, subject to some very limited exceptions.¹

The requestor is certainly not an “elected or appointed official of the government,”²  nor does he receive a “salary, per diem or expenses paid” with government funds.³ Neither is he an “officer, director, commissioner, supervisor, chief, head ... or employee” of the city.⁴  So then the specific question is whether the requestor is an “agent” of the city, as listed in Code Section 25-4-103(p)(ii) above.

While the Ethics in Government Act defines public servant, it does not define agent. “Where the legislature has not defined a term within the statutory scheme, we look to the term's common and generally accepted meaning.” Moore, ex rel. City of Aberdeen v. Byars, 757 So.2d 243, 248 ( 15) (Miss. 2000). An agent is generally “[a] person authorized by another (principal) to act for or in place of him; one intrusted with another’s business.” Black’s Law Dictionary 41 (6th ed. 1991). By contrast an independent contractor is “[g]enerally, one who, in exercise of an independent employment, contracts to do a piece of work according to his own methods and is subject to his employer’s control only as to end product or final result of his work.” Id. at 530. Some independent contractors, such as attorneys, may also be agents due to the nature of their work. Restatement (Second) of Agency § 1 Comment on Subsection (3) (1958).

Our courts have promulgated well established tests to further determine whether an individual is merely an agent of another or an independent contractor. That inquiry should consider
 

[w]hether the principal master has the power to terminate the contract at will;  whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment;  whether he furnishes the means and appliances for the work;  whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output;  whether he has the right to prescribe and furnish the details of the kind and character of work to be done;  whether he has the right to supervise and inspect the working during the course of the employment;  whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the subemployees and to fix their compensation;  and whether he is obliged to pay the wages of said employees. None of these tests alone is more important than another.

Miller v. Shell Oil Co., 783 So.2d 724, 727 ( 12) (Miss. App. 2000); quoting  Kisner v. Jackson, 159 Miss. 424, 428-29, 132 So. 90, 91 (1931).

When reviewed in light of these factors, the agreement in effect here clearly reveals the requestor is an independent contractor and not an agent of the city. The agreement is for the term of one year and is renewable yearly by the Board of Aldermen. The compensation is fixed by agreement at a flat rate. No deductions are withheld by the city, and the city provides no benefits. The agreed scope of work is very general, and details regarding the method of performance are left to the contractor. It bears noting that this agreement has been in effect for almost three years.

Therefore, the Commission finds the requestor is not an agent of the city and is not a public servant. Consequently, he will not violate the Ethics in Government Laws if he contracts with the city on the construction project described above. This finding is made solely pursuant to and for purposes of Mississippi’s Ethics in Government Laws and is applicable only thereto. Any application of this opinion to any other law shall be null and void.
 

Scott Rankin
Executive Director
 

¹ See Section 25-4-105(4), Miss. Code of 1972.

² Section 25-4-103(p)(i), above.

³ Section 25-4-103(p)(iii), above.

⁴ Section 25-4-103(p)(ii), above.