This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on April 7, 2000, basing its approval solely on the facts and circumstances stated herein.

May a member of the State Board of Pharmacy simultaneously be employed by the State Department of Mental Health at a State Hospital?

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(a), (f)(i)(ii), (g)(v), (h), (l) 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.

(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), (3)(a) and (4)(h) 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:

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee."

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.

I currently sit on the Mississippi State Board of Pharmacy. I have recently been made aware of a possible position with a State Hospital. I am interested in interviewing for this position. I would like an opinion to rule out any conflict of interest or other rule or regulation that would prevent my continuing service on the Board of Pharmacy if I am fortunate enough to obtain this position with the state.

In addition to the requestor's facts, the Commission's staff obtained the following additional facts. The State Hospital is for the acute care treatment of persons with mental illness who have been committed by the chancery court. The State Hospital is a facility administered by the State Board of Mental Health. Section 41-4-11, 1972 Mississippi Code Annotated, provides that a mental or retardation facility that may be established, shall become subject to the jurisdiction and control of the State Department of Mental Health. The position with the State Hospital that the requestor is seeking will be that of a pharmacist. The requestor believes that there will be only one pharmacist position available at the State Hospital and therefore the title may be Director of Pharmacy.

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

Code Section 25-4-105(3)(a), cited above, prohibits a member, officer or employee of the state from being a contractor, subcontractor or vendor with the state. A state member or officer being employed by and/or receiving compensation from the state by way of another position may violate Code Section 25-4-105(3)(a). However, Code Section 25-4-105(4)(h), cited above, provides for an exception to the prohibitions set forth in Code Section 25-4-105(3)(a) when the employment or compensation is from a separate authority of the state.

The State Board of Pharmacy on which the requestor currently serves and the State Department of Mental Health which will be the requestor's employer should he obtain the position at the State Hospital are separate authorities of the state. Therefore, the state conflict of interest laws will not as such prohibit the requestor from simultaneously serving on the State Board of Pharmacy and being employed by the State Department of Mental Health at the State Hospital.

Notwithstanding the above, Code Section 25-4-101 and Code Section 25-4-105(1), both cited above, respectively prohibit a state officer or employee from acting contrary to the Legislature's declared public policy that public service is a public trust and from using his official position(s) to obtain a pecuniary benefit for himself, his relatives or a business with which he is associated.

Therefore, the requestor will be prohibited from taking part in any matter, including licensing matters, that comes before the State Board of Pharmacy that concerns, directly or indirectly, the State Department of Mental Health and/or the State Hospital or the Department's and/or Hospital's employees.

To avoid taking part in such matters, the individual must totally and completely recuse himself. An abstention is a vote with the majority of the governing entity's board 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.

In addition to the above, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit any member of a governmental board from having an interest, direct or indirect, in any contract authorized by his board during his term or for one year thereafter.

As a member of the State Board of Pharmacy, the requestor is advised that he would be in violation of Constitutional Section 109 and Code Section 25-4-105(2) should his board authorize any contract with the State Department of Mental Health or the State Hospital or provide any funding to the State Department of Mental Health or the State Hospital that allowed the authorization of a contract in which he would have an interest, direct or indirect.

The requestor is advised 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 board member's vote, the authorization by the member's board nonetheless results in a contract in which the board member has a prohibited interest.

The requestor also is advised to provide his facts to the State Attorney General and the State Auditor as other state laws outside of the state conflict of interest laws and the state's financial and compliance rules may apply to such duel state service.

Ronald E. Crowe

Executive Director