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 purchase real property from the municipality?

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(h) and (p)(i)(ii)(iii) states:
 

“(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;

(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) and (b) 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.

(b) Be a purchaser, direct or indirect, at any sale made by him in his official capacity or by the governmental entity of which he is an officer or employee, except in respect of the sale of goods or services when provided as public utilities or offered to the general public on a uniform price schedule.”

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

In follow up to our telephone conversation, I would like to request a formal opinion with regard to a matter involving the City I represent.  The City declared a platted subdivision lot held by the City to be excess property and pursuant to Miss. Code Ann. Section 21-17-1, the City advertised for sealed bids on the property.  Sealed bids were opened on a certain day at the regular board meeting.  The only bid received was from a gentleman, hereinafter referred to as “bidder,” and was an acceptable bid which the Board in fact accepted at that Board meeting, with a closing to occur later.

I subsequently learned that the bidder had recently entered into a service agreement with the City pursuant to which he is providing inspection services for the city building department.  Having some concern that this might create a problem under Miss. Code Ann., Section 25-4-105, I contacted you and you suggested that we request a formal opinion on this matter.
Under the agreement between the City and the bidder (a copy of which is enclosed) [with the original request letter] the bidder provides certain services on a fee basis.  We believe he is an independent contractor under the terms of this agreement; however, before we move further on this matter, we would appreciate a formal ethics opinion from you as to whether or not closing on the bid submitted by the bidder would violate state ethics laws.

If there is no violation, we would propose to proceed to a closing at which time the City would convey the lot to the bidder and the purchase price for the lot would be tendered to the City in return for the deed.

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

Section 25-4-105(3)(a) and (b), Miss. Code of 1972, both quoted above, prohibit a public servant from being a contractor or purchaser to his own governmental entity, among other conduct. The preliminary question presented here is whether the bidder is a “public servant,” as that term is defined in Section 25-4-103(p), Miss. Code of 1972, also quoted above. If the bidder is a public servant, he will be prohibited from purchasing the land in issue, subject to some very limited exceptions.¹

The bidder is certainly not an “elected or appointed official of the government,”²  nor does he receive a “salary, per diem or expenses paid”³  with government funds. Rather, his compensation is based upon the amount of work performed on an as-needed basis. Neither is the bidder an “officer, director, commissioner, supervisor, chief, head ... or employee” of the city.⁴  So then the specific question is whether the bidder is an “agent” of the city, as listed in 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 “Service Agreement” in effect here clearly reveals the bidder is an independent contractor and not an agent of the city. The agreement is for the term of one year. The compensation is fixed by agreement. The scope of work is generally fixed, with details left to the contractor. Moreover, the agreement explicitly labels the bidder’s role as “that of an independent contractor and not as an employee of the City. The relationship is that of a buyer and seller of professional services. [The bidder] shall not be considered an agent of the City.” It bears noting that this agreement was executed long before this opinion was requested.

Therefore, the Commission finds the bidder in question 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 purchases real property from the city as 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 is 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.