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 11, 1997, basing its approval solely on the facts and circumstances stated herein.
May a state legislator serve as the deputy director of a municipal-county economic development authority created by local and private legislation?
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:
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 25-4-101 states:
"The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the state and local governments."
Code Section 25-4-103 (f)(i)(ii), (g)(i)(ii)(iii)(iv)(v), (h), (l) and (p)(i)(ii)(iii) states:
"(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:
(i) Counties;
(ii) Municipalities;
(iii) All school districts;
(iv) All courts; and
(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.
(l) '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 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 (1), (2) and (3)(d) 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:
(d) Perform any service for any compensation during his term of office or employment by which he attempts to influence a decision of the authority of the governmental entity of which he is a member."
Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
The City-County Economic Development Authority (EDA) was created by state legislation several years ago. I have attached a copy of the legislation for your review and files.
The attached legislation outlines the organization's make-up to include the following:
1. Source of Funding;
2. Purpose for Funding;
3. Staffing Patterns;
4. Board Make-Up; and
5. All Other Items Essential to the Organization's Policies.
The EDA's budget approximates $350,000 per year. The county provides about 50%, the city about 28%, the state matching grant program about 3.77% and the balance in private grants and donations.
On May 1, 1997, the EDA advertised for the position of Deputy Director (the equivalent of Director of Minority Affairs). The EDA received an application from a State Legislator. The individual was elected after the Legislature passed the Local and Private Law creating the EDA.
Additional information provided by the requestor shows that the "state matching grant program" funds are limited to design and printing costs for brochures and an Internet Home Page related to a retiree partnership program. The "state matching grant program" funds provided to the EDA total between $11,000.00 and $12,000.00.
The Commission formally adopts Advisory Opinion No. 90-080-E in response to this request and by attachment incorporates it into this opinion.
Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
As set forth in the attached advisory opinion, the state conflict of interest laws do not as such prohibit a state legislator from being employed by a local economic development entity. This is with the understanding that the state legislator was not a member of the Legislature that passed the law(s) that allowed the establishment of the local economic development entity.
Constitutional Section 109 and Code Section 25-4-105 (2), both cited above, would prohibit a state legislator from being employed by a local economic development entity should he be a member of the Legislature that passed any law(s) that established the local economic development entity or allowed the local economic development entity to continue to exist. Also, these same laws would be violated should a state legislator be a member of the Legislature that passed any appropriation bills that provided funding to the local economic development entity if the state funding allowed payments under contracts in which the state legislator was interested, directly or indirectly. (1)
The additional information provided by the requestor shows that the "state matching grant program" funds received by the local economic development entity were not for a purpose that would result in payments under contracts in which the state legislator would be interested, directly or indirectly. [Emphasis Added]
Also, should the "state matching grant program" funds received by the local economic development entity have been authorized by the Legislature prior to the state legislator's term, then there would be no violation of Constitutional Section 109 and Code Section 25-4-105 (2).
Notwithstanding the above, the requestor is cautioned to advise the state legislator to remain keenly aware of Code Section 25-4-105 (1) and (3)(d), cited above, should he accept employment with the local economic development entity.
Code Section 25-4-105 (1) prohibits a public servant from using his position to obtain a pecuniary benefit for himself, a relative, or a business with which he is associated.
Code Section 25-4-105 (3)(d) prohibits a public servant from performing any service for any compensation during his term of office or employment by which he attempts to influence a decision of the authority of the governmental entity of which he is a member.
To absolutely avoid a violation of Code Section 25-4-105 (1) and (3)(d), the state legislator may totally and completely recuse himself from any and all matters coming before the Legislature that concern the local economic development entity should he be employed by it.
An abstention is a vote with the majority of the governing entity's body 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 entity's board should state the public servant left the meeting by showing him or her absent for that matter.
The requestor is cautioned to advise the state legislator that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105 (2). Even without the state legislator's vote, the authorization by the Legislature nonetheless results in a contract in which the state legislator has a prohibited interest. [Emphasis Added]
The issue presented by the requestor also must be viewed as it relates to Code Section 25-4-101, set forth above. This code section sets the tone for the conflict of interest laws as the Legislature's "Declaration of Public Policy." This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.
Should the state legislator be employed by the local economic development
entity, then he should totally recuse himself from any matters coming before
the Legislature that concerns the city-county economic development entity
in order to avoid any potential of creating suspicion among the public
and reflecting unfavorably upon the city-county economic development entity.
Ronald E. Crowe
Executive Director
1. An appropriation bill funding programs that allow payments under contracts in which legislators are interested are 'laws authorizing the contracts'. See Frazier v. State , 504 So. 2d 675 (1987) and Cassibry v. State , 404 So. 2d 1360 (1981).