Mississippi Advisory Opinions October 02, 1987: 19871002 (October 02, 1987)

Advisory Opinion Text

Honorable Frank G. Power

City Attorney

Post Office Drawer 31

Leland, Mississippi 38756

Dear Mr. Power:

Attorney General Pittman has received your request for an opinion and has assigned it to me for research and reply. You ask several questions concerning retirement benefits under Miss. Code Ann. § 25-11-127 (Supp. 1986) and concerning conflicts of interest and separation of powers. A copy of your letter is attached for reference.

Question No. 1 :

‘Can a person who is retired from state employment and now receiving retirement benefits from the Mississippi Public Employees Retirement System and who is subsequently elected as an alderman of a municipality continue to receive such retirement benefits and at the same time receive compensation for being an alderman or must this person waive his compensation as an alderman in order to continue to receive his retirement benefits during his term of office?’

Response : Enclosed is a copy of an opinion of this office issued to Joseph M. Shepard dated August 18, 1986, which states the general rule that any employee who retires and begins to receive retirement benefits shall cease receiving the retirement benefits when he again is employed with a covered agency or entity. This opinion also discusses the part time employment exception and the seventy (70) days of age exception to this rule.

Question No. 2 :

‘Can a public school teacher in a separate school district outside of the City of Leland run and be elected to the office of alderman of the City of Leland, and, if elected, still remain a public school teacher? Would it be a violation of the separation of powers provision of the Mississippi Constitution of 1890 for such person to be a public school teacher and, at the same time, serve as an alderman of a municipality? Would it make any difference if no part of the school teacher's salary (including local funding) comes from any tax levy passed by the city board of aldermen?’

Response : Enclosed is a copy of an opinion of this office issued to John T. Haltom dated March 31, 1987 which states in part:

There is no prohibition per se against a public school teacher qualifying as a candidate for the office of city alderman. However, if elected the public school teacher may be in violation of the separation of powers provision of the Mississippi Constitution of 1890 and may ultimately be in violation of Section 109 of said constitution.

The opinion discusses in detail the separation of powers problem and the Section 109 problem. The separation of powers problem would not be eliminated if no part of the school teacher's salary comes from any tax levy passed by the city board of aldermen.

Question No. 3 :

Can a municipality purchase equipment parts from an equipment dealer if one of the aldermen of the municipality is an officer, director or stockholder of the equipment company? Would it make any difference if this particular equipment company was the only source available in the county from which the needed parts could be obtained?'

Response : Miss. Code Ann. § 25-4-105(2)(a) (Supp. 1986) provides:

No public servant shall:

Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, 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.

‘Material financial interest’ is defined in Miss. Code Ann. § 25-4-103(j) as follows:

‘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, ownership of any interest of less than ten percent (10%) in a business or aggregate annual income of less than one thousand dollars ($1, 000.00) from a business shall be deemed not be a material financial interest in such business.

Miss. Code Ann. § 25-4-105(2)(f) (Supp. 1986) provides:

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.

However, Miss. Code Ann. § 25-4-105(3)(d) (Supp. 1986) provides:

Notwithstanding the provisions of subsection (2) of this section, a public servant or his relative:

May be a contractor, subcontractor or vendor with any authority of the governmental entity of which he is an officer or employee 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 an officer or employee where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchase laws.

Whether or not the proposed purchase would fall within the above statutory exception [ § 25-4-105(3)(d)] is question of fact to be ultimately determined by a court of competent jurisdiction.

Assuming arguendo that the proposed purchase falls within the § 25-4-105(3)(d) exception, this office invites your attention to the provisions of Article IV, Section 109 of the Mississippi Constitution of 1890:

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.

Whether or not § 25-4-105(3)(d) is unconstitutional is matter for judicial determination, and said statute is presumed valid until set aside by a court of competent jurisdiction. Miss. Power Co. v. Goudy , 459 So.2d 257 (Miss. 1984); Alexander v. State , 441 So.2d 1329 (Miss. 1983) .

Very truly yours,

Edwin Lloyd Pittman Attorney General.

Pete J. Cajoleas Assistant Attorney General.

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Notes:

It should be noted that the Mississippi Supreme Court has already ruled that §§ 25-4-105(3)(a) and (3)(h) are contrary to Section 109 of the Constitution and therefore, void and unconstitutional. Frazier v. State By and Through Pittman , 504 So.2d 675 (Miss. 1987) . 1987 WL 121958 (Miss.A.G.)

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