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.

Is Mississippi Technology, Inc. a part of government for the purpose of the State's conflict of interest laws and/or the Mississippi Technology, Inc. board members by virtue of their service on its governing board public servants for the purpose of the State's conflict of interest laws?

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:

Code Section 25-4-103(a), (g)(v), (h), (o) and (p)(i)(ii)(iii) states:

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

(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.

(o) 'Public funds' means money belonging to the government.

(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."

Pertinent facts and circumstances in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of this opinion.

The Commission formally adopts Advisory Opinion No. 87-008-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 the Commission stated in the attached advisory opinion, an inquiry of the type presented herein can only be addressed by the consideration of three controlling questions.

The first question concerns whether Mississippi Technology, Inc. (MTI) is a part of government for the purpose of this state's conflict of interest laws. To qualify as a governmental entity, MTI must come within the definitions contained in the above cited Code Section 25-4-103(a), (g)(v) and (h).

Not unlike ITS in the attached advisory opinion, MTI does expend public funds which is an element in the application of Code Section 25-4-103(g)(v). However, MTI was not created by statute, ordinance or executive order which is also a necessary element for application of Code Section 25-4-103(g)(v). This finding is based on the requestor's letter which states, "MTI was not created by statute, ordinance or executive order."⁽¹⁾

Also, Code Section 25-4-103(h) is not applicable to MTI as it is not authorized by law to exercise a part of the sovereign power of the state. This finding is based on the requestor's letter which states, "there is no statutory authority to allow MTI to exercise any sovereign powers of the State." If Code Section 25-4-103(h) is not applicable to MTI, then it is obvious that Code Section 25-4-103(a) also is not applicable.

Therefore, MTI is not a part of government for the purpose of this state's conflict of interest laws based on the above findings.

The second question concerns the issue of whether the MTI board members are public servants as anticipated in the above cited Code Section 25-4-103(p)(i)(ii)(iii).

Clearly, the MTI board members are not elected or appointed officials of government. Therefore, Code Section 25-4-103(p)(i) is not applicable.

Regarding Code Section 25-4-103(p)(ii), the MTI board members are without question directors of an entity which is "funded by public funds and which expends public funds." However, as set forth in the discussion of question one above, MTI is not an entity "created by or under the laws of the state or created by an agency or governmental entity thereof." Therefore, the MTI board members are not public servants for purposes of Code Section 25-4-103(p)(ii).

Code Section 25-4-103(p)(iii) provides that a public servant is "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." The requestor's letter clearly states that "board members of MTI are not paid a salary, per diem, nor reimbursement for expenses of travel to board meetings." Therefore, Code Section 25-4-103(p)(iii) does not apply to the MTI board members as long as they continue to not be paid a salary, per diem or expenses paid in whole or in part out of funds authorized by the government.

The third question concerns whether the MTI board members are public officers. The definition of public servants includes public officers. Because the MTI board members have already been determined to not be public servants for purposes of Code Section 25-4-103(p)(i)(ii)(iii), it follows that they are not public officers.

Based on the above, Mississippi Technology, Inc. is not a part of government for the purpose of the State's conflict of interest laws nor are the MTI board members by virtue of their service on its governing board public servants for the purpose of the State's conflict of interest laws.

Notwithstanding the above, any public servant serving on the MTI board remain subject to all the prohibitions and limitations imposed by the state conflict of interest laws as a result of the public servant's governmental position.

Ronald E. Crowe

Executive Director

1. Title 57, Chapter 83, of the 1972 Mississippi Code Annotated, does provided for the MISSISSIPPI TECHNOLOGY, INC. LIAISON COMMITTEE, effective July 1, 1999. It reads as follows:

§ 57-83-1. Creation; duties and responsibilities.

The President of the Senate and the Speaker of the House of Representatives shall each appoint three (3) members of their respective legislative houses to serve as members of the Mississippi Technology, Inc., Liaison Committee. The members of such committee shall be entitled (a) to attend meetings of the Mississippi Technology, Inc., Board of Directors, (b) to receive all budgets, reports, audits and all financial and other information distributed to the directors of Mississippi Technology, Inc., (c) to meet and confer with the directors and staff of Mississippi Technology, Inc., and (d) to perform such other activities as may be necessary or proper in discharging their responsibilities of liaison with their respective houses of the Legislature. The members of the liaison committee shall have no jurisdiction or vote on any matter within the jurisdiction of Mississippi Technology, Inc. The members of the committee shall prepare and submit an annual report to the Legislature no later than December 15 of each calendar year setting forth the activities and financial condition of Mississippi Technology, Inc., and their perspective and comments on the activities of Mississippi Technology, Inc. The report shall also contain recommendations regarding policy or legislative changes for consideration by the Legislature. The members of the Mississippi Technology, Inc., Liaison Committee shall be bound by the same limitations as to confidentiality of information regarding products, processes or the internal affairs of private businesses, as are imposed upon the officers and directors of Mississippi Technology, Inc. When the Legislature is not in session, members shall be paid per diem and all actual and necessary expenses, including mileage expenses, from their respective contingent expense funds at the rate authorized for committee meetings when the Legislature is not in session; however, no per diem and expenses will be paid when the Legislature is in session. The terms of the members of the liaison committee shall expire at the end of their terms of office.