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 an attorney represent a state board while the attorney’s law firm leases office space to the board?

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(a), (c), (g)(v), (h), (k)(i)(ii)(iii)(iv) and (p)(i)(ii)(iii) states:
 

“(a) ‘Authority’ means any component unit of a governmental entity.

(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.

(g) ‘Government’ means the state and all political entities thereof, both collectively and separately, including but not limited to:

(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.

(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) and (4)(d) 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.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(d) May be a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which is a contractor, subcontractor or vendor with any  authority of the governmental entity of which he is a member, officer, employee or agent: (i) where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws; or (ii) where the contractual relationship involves the further research, development, testing, promotion or merchandising of an intellectual property created by the public servant.”

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

A state board respectfully requests an opinion from the Mississippi Ethics Commission regarding the Board’s proposed contract with an attorney.  Two drafts of proposed contracts have been enclosed for your reference.  Please issue an opinion with regard to each.

Specifically, under the confines of each of the enclosed contracts:

1. Would the attorney be considered a contractor, agent or public servant?

2. As such, would it be permissible for the Board to execute either of the enclosed contracts and a separate lease agreement with the attorney’s firm?

It is important to note that the Attorney General of the State of Mississippi and his appointees shall be representing the Board on all disciplinary matters and proceedings. The attorney would serve the Board in an advisory capacity. Of course, any lease agreement would be according to the procedures set forth in the Bureau of Building, Grounds and Real Property Management’s State Agency Leasing Procedure Manual.

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

The first question to be addressed is whether the attorney is a public servant, as defined in Section 25-4-103(p)(ii), Miss. Code of 1972, quoted above. The Commission has previously opined that an attorney for a governmental board with a general scope of representation who is not a government employee is an agent for the board and therefore a public servant. See Ops. Miss. Ethics Commn. No. 04-115-E and 96-055-E.

Here the requestor notes this attorney will not be responsible for all legal representation required by the board. The Office of the Attorney General will handle disciplinary matters and proceedings. Under Proposed Contract No. 1, a copy of which was attached to the request but is not attached to this opinion, the attorney is “to provide legal consultation services to the Board, as directed by the Board.” Under Proposed Contract No. 2, a copy of which was also attached to the request but is not attached to this opinion, the attorney is “to provide legal consultation on statutory legislative proposals and Board rule revisions.” The scope of representation under proposal 1 is broad and general and presumably encompasses everything except the matters already handled by the Attorney General’s Office. Under proposal 2 the scope of representation is narrowly limited to two matters.

Proposal 1 would make the attorney “general counsel” to the Board, for lack of a given title, whereas proposal 2 would grant the attorney the limited authority of “special counsel.” A helpful analogy to which the Commission has turned in the past may be found in the well developed field of agency law. For example see Ops. Miss. Ethics Commn. No. 04-090-E and 04-092-E. The authority of an agent may be general or special, and the liability of the principal for his agent may be limited to the scope of the agency. Miller v. Shell Oil Co., 783 So.2d 724, 727 (¶ 12) (Miss. App. 2000); quoting Ciba-Geigy Corp. v. Murphree, 653 So.2d 857, 872 (Miss. 1994). Likewise, the reach of a governmental agent’s authority may have bearing upon his or her status as a public servant and upon the restrictions under which he or she may operate. See Op. Miss. Ethics Commn. No. 00-121-E. The Commission finds that when an attorney is not a government employee but an independent contractor to a governmental entity, the scope of representation may determine whether the attorney is a public servant, as defined in Section 25-4-103(p)(ii).

Under proposal 1 this attorney would be a public servant like the board attorneys in Ops. Miss. Ethics Commn. No. 04-115-E and 96-055-E. But under proposal 2 the scope of representation is so narrow and limited that the attorney would not be deemed a public servant. This is a determination that must be made on a case-by-case basis, relying on the specific facts of each situation.

If the board pursues proposal 1, making the attorney a public servant, the attorney would be prohibited from having a “material financial interest” in a business which is a contractor to the state. Section 25-4-105(3)(a), Miss. Code of 1972. The law firm is certainly a “business,” as defined in Section 25-4-103(c), Miss. Code of 1972, and the attorney, as a partner in the firm, has a “material financial interest” in the firm, as defined in Section 25-4-103(k). Moreover, it is virtually inconceivable under these facts that the situation would fit the only possible exception codified in Section 25-4-105(4)(d). Therefore, if the board and the attorney enter into Proposed Contract No. 1, the firm will be prohibited from leasing space to the board. However, if the parties execute Proposed Contract No. 2, the attorney will not be subject to the Ethics in Government Laws solely by virtue of that contract.
 

Scott Rankin
Executive Director