This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 22, 2005, basing its approval solely on the facts and circumstances stated herein.
 

May a former city council member be employed by a private, non-profit organization holding contracts with the city which were authorized by the city council during the former city council member’s term of office?

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)(i)(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:

(i) Counties; and

(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.
 

On July 3, 2005, my term of office as a member of the City Council ends, and I will be seeking employment in the private sector.  I am familiar with Official Advisory Opinion No. 04-057-E, which addresses the issue of whether a city councilman may be employed by a private, non-profit organization holding contracts with the city, which are authorized by the city council.

The facts on which this current opinion request is made are different from those in No. 04-057-E in that the proposed employment takes place in another city.  Specifically, a Community Action Agency is in the process of constructing a Head Start facility in the City.  Funding for the City project is being provided in part by the County and in part by the United States Department of Health and Human Services, with the remainder being borrowed by the non-profit.  It is not anticipated that the City will contribute any funds for this project.

The Community Action Agency is a private non-profit organization with a main office in the City and Head Start Centers throughout the County including the other City.  It has been proposed that I be retained as project coordinator for the facility.  One suggestion that has been made is for me to work for the County to monitor county funds being used in the construction project.  This could be achieved through direct employment with the county or through a contract with the county as an independent contractor.  Another scenario is to work either directly or indirectly with the Community Action Agency in the same capacity.

Please advise whether I am allowed to be employed, under any of these or other facts and circumstances vis-à-vis all applicable laws of the State of Mississippi.

The Commission formally adopts Advisory Opinion No. 04-057-E in response to this request and by attachment incorporates it into this opinion.

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

As the requestor was advised in the attached Advisory Opinion No. 04-057-E, “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.” [Emphasis added to the underlined text]

As stated previously, the requestor is prohibited from being employed by the CAA during his term and for one year thereafter, if the city’s contracts with the CAA where authorized during his term and for one year thereafter. The requestor is again advised that an indirect interest is also prohibited by Constitutional Section 109 and Code Section 25-4-105(2). The requestor has at a minimum an indirect interest in all the CAA’s contracts as its employee. [Emphasis added to the underlined text]

Notwithstanding the above, the requestor is not prohibited from being employed by or contracting with the County Board of Supervisors to monitor county funds being used in the construction project as long as the city’s does not contract to contribute any funds to the construction project within one year of the requestor’s term of office ending.
 

Scott Rankin
Executive Director