This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on June 6, 1997, basing its approval solely on the facts and circumstances stated herein.

May a state legislator employed by an Indian Tribe as Special Assistant Attorney General represent the Indian Tribe's members' interests before the Division of Medicaid?

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 (a), (f)(i)(ii), (g)(v), (h), (1) and (p)(i)(ii)(iii) states:

"(a) 'Authority' means any component unit of a governmental entity.

(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) 'Governmental' 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.

(1) 'Pecuniary benefit' means benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain. Expenses associated with social occasions afforded public servants shall not be deemed a pecuniary benefit.

(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 finds or which expends, authorizes or recommends the use of public finds; 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 (1), (2), (3)(a) and (4)(i) states:

"(1) No public servant shall use his official position to obtain pecuniary benefit for himself other than that compensation provided for by law, or to obtain pecuniary benefit for any relative or any business with which he is associated.

(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.

(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:

(i) If a member of the Legislature or other public servant employed on less than a full-time basis, may represent a person or organization for compensation before an authority of the governmental entity other than an authority of the governmental entity of which he is an officer or employee."

I am employed by an Indian Tribe as a Special Assistant Attorney General. As such
I have been asked to represent the Tribe's interest as it relates to certain members
who may be denied benefits under the Mississippi Medicaid Act.

As a state legislator, do I have any conflict of interest, serving as a state legislator and representing the Tribe in an advisory relationship with the Department of Medicaid, a division of the State of Mississippi?

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

As set forth in the attached opinion, Constitutional Section 109 and Code Section 25-4-105 (2), both cited above, do not prohibit a state legislator from representing a client before a state agency, except the State Legislature or its offices, in negotiation or litigation if the legislator/attorney's compensation or fee is not contingent upon the success of the negotiation or litigation but is, in fact, a set salary or hourly fee.

The state legislator is not prohibited by Code Section 25-4-105 (3)(a), cited above, from representing a client before a state agency, except the State Legislature or its offices, as the exception in Code Section 25-4-15 (4)(i), cited above, is applicable.

Notwithstanding the above, the state legislator/attorney is cautioned not to use his official position as a state legislator to obtain a pecuniary benefit for himself in violation of the above cited Code Section 25-4-105 (1).

To avoid using ones official position to obtain a pecuniary benefit, the public servant must totally and completely recuse himself from subject matters providing the pecuniary interests. An abstention is a vote with the majority of the governing authority and therefore does not qualify as a recusal.

A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during the official meeting, but also avoid discussing the subject matter with other board members, staff or any other person prior to and after the official meeting. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

Also to properly recuse oneself from a matter, the public servant must leave the room or area where such discussions, considerations and/or actions take place. The minutes of the governing authority should state the public servant left the meeting by showing him or her absent for that matter.
 
 

Ronald E. Crowe Executive Director