STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6624

June 5, 1989

CONFLICT OF INTEREST:

Const 1963, art 4, Sec. 10--award of construction contract by a state university to a company owned by a former member of the governing board of the university

A former state officer is not in a conflict of interest prohibited by Const 1963, art 4, Sec. 10, and MCL 15.30 et seq; MSA 4.1700(21) et seq, if after he resigned his office, a company he owns bids upon and is awarded a contract under a sealed bid procedure to construct a building for the university upon whose governing body he formerly served.

Honorable D.J. Jacobetti

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion on a question concerning a possible conflict of interest in connection with the bidding for a construction project at Michigan Technological University (MTU).

Your question arises as a result of subsequent changes in the circumstances which formed the basis for the conclusions reached in OAG, 1989-1990, No 6617, p ----, (April 28, 1989), which addressed two questions concerning possible conflicts of interest in the awarding of a proposed construction contract at MTU. In response to the first question raised, that opinion states:

The opinion answers the second question as follows:

You have informed me of the following facts and changes which occurred after the issuance of this opinion regarding the construction project:

1. The State of Michigan, Department of Management and Budget, has requested sealed bid proposals for the revised and scaled down project. Bidding is open to all qualified bidders and is not limited to the company which had submitted the low bid on the initial project.

2. The individual found to have a conflict of interest in OAG, 1989-1990, No 6617, supra, has resigned his office of member of the MTU Board of Control; his resignation occurred prior to the advertisement for bids on the scaled down project.

3. The project was scaled down by action of the architect and the Department of Management and Budget. The MTU Board of Control has not reviewed, commented on, or approved the plans, specifications, or blueprints for the revised and scaled down project.

4. Construction of the project will be overseen by the State of Michigan, Department of Management and Budget, and not by MTU.

I have also been informed that any bid submitted by this person's company will be solely on behalf of that company, and not from a joint venture between that company and a company affiliated with MTU.

Your question may be stated as follows:

Const 1963, art 4, Sec. 10, provides:

This constitutional provision was implemented by MCL 15.301 et seq MSA 4.1700(21) et seq. In particular, MCL 15.302; MSA 4.1700(22), contains language virtually identical to that found in Const 1963, art 4, Sec. 10.

"When a constitutional or statutory provision contains clear and unambiguous language, ... effect is given to the plain meaning of the words used." Oppenhuizen v City of Zeeland, 101 MichApp 40, 49; 300 NW2d 445 (1980) lv den 414 Mich 963 (1982).

Const 1963, art 4, Sec. 10, and MCL 15.301 et seq; MSA 4.1700(21) et seq, clearly and unambiguously apply only to legislators and state officers and, thus, would not generally bar a former state officer from being interested in a contract with the state or any political subdivision thereof.

Additionally, MCL 15.341 et seq; MSA 4.1700(71) et seq, which prescribes standards of conduct for public officers, is also inapplicable to the actions of appointed state officers taken after the officers have left state government service. See OAG, 1981-1982, No 6046, p 598 (March 22, 1982).

The individual in question has resigned his position as a member of the Board of Control of MTU. Furthermore, according to the information supplied in connection with your request, the bidding process has been conducted by the Department of Management and Budget rather than by the University, and the bids were solicited by the Department after the individual in question had already resigned his office as a member of the University's Board of Control. Under the facts presented, he is no longer a state or public officer subject to the prohibitions of Const 1963, art 4, Sec. 10, and MCL 15.301 et seq; MSA 4.1700(21) et seq.

It is my opinion, therefore, that the awarding of a contract for a construction project at a state university to a company owned by a former member of the university's board of control would not constitute a conflict of interest if the company is determined to be the lowest qualified bidder pursuant to a sealed bid procedure.

Frank J. Kelley

Attorney General