The opinion of the court was delivered by: Banks, Justice
Stockstill, et al v. Hales, et al, 97-CA-00203-SCT, __ So. 2d __
TRIAL JUDGE: HON. MICHAEL RAY EUBANKS
COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION AFFIRMED - 8/13/98
MOTION FOR REHEARING FILED:
¶1. This appeal represents a county bid purchase matter in connection with a bridge reconstruction project. We conclude that the county board of supervisors correctly balanced its responsibilities under the bid law and those under the law regarding ethics and conflicts of interest. The circuit court correctly ruled that the Board's nunc pro tunc amendment was proper and that it related back to the date of the Board's original meeting. The circuit court also properly found that the actions of the Board were not arbitrary and capricious. Accordingly, we affirm.
¶2. The facts of this case are largely undisputed. In March of 1996 the Pearl River County Board of Supervisors (Board) advertised for bids to be submitted on a project to reconstruct the George Ford Road Bridge. Eight bids were submitted, including that of the plaintiff, Huey Stockstill, Inc. (Stockstill) and defendant Columbia Welding and Construction, Inc. (Columbia).
¶3. At the time the bids were submitted, a former Pearl River County Supervisor, Thomas Pearson, was employed by Stockstill as a bid estimator, and had assisted in preparing Stockstill's bridge bid. Pearson's term as supervisor had expired on January 2, 1996, and therefore he had been out of office for less than a year when the bid was prepared and when it was submitted. Wary of possible conflicts of interest, the Board requested an opinion from the Mississippi Ethics Commission (Commission) regarding the propriety of accepting Stockstill's bid in the event that it was the lowest bidder. On April 5, 1996, the Commission rendered a written opinion. Citing § Miss. Const. art. 4, § 109 and Miss. Code Ann. 25-4-105 (2) (1991), the Commission stated that a former county supervisor, as an employee of a corporation, has a prohibited interest in all contracts with the corporation authorized by the county during his term and for one year thereafter. *fn1
¶4. The bids were opened on April 15, 1996. Stockstill submitted the lowest bid, at $1,070,316.90; Columbia submitted the second lowest bid, at $1,082,242.95. On April 17, 1996, Stockstill shifted Pearson's employment to a separate company, Custom Aggregates & Grinding, Inc. (Custom Aggregates). The stock of Custom Aggregates is wholly owned by Huey Stockstill, Sr. Huey Stockstill, Inc. and Custom Aggregates share the same office space and mailing address, have common officers and directors, and Stockstill provides "administrative services" to Custom Aggregates. Mr. Pearson continued to work as a bid estimator after his change of employment.
¶5. In a hand-delivered letter dated April 17, 1996, Stockstill informed the attorney for the Board that Pearson was no longer employed by Stockstill. In response to this new circumstance, attorneys for the Board requested a second opinion from the Ethics Commission. In the meantime, Columbia formally advised the Board of its position that any award of the contract to Stockstill would violate the constitutional and statutory conflict of interest provisions, and that any contract made in violation of these provisions would be null and void. The Board took all bids under advisement pending the result of its latest query to the Commission.
¶6. On May 3, 1996, the Commission rendered its second opinion. It stated that whether or not the relation between the two companies was sufficient to cause the former supervisor to have a direct or indirect interest would require review by a court. It pointed out, however, that [c]learly, the former supervisor being employed by the company that has the same owners and the same physical and mailing addresses as [Stockstill] has the potential of creating suspicion among the public and reflecting unfavorably upon the ...