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 an independent contractor with the Yazoo-Mississippi Delta Levee District simultaneously serve as a member of the Board of Commissioners of the Yazoo Mississippi Delta Joint Water Management District?
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(b), (e), (f)(i)(ii), (g)(i)(ii)(v), (h), (i), (l), (m), (o) and (p)(i)(ii)(iii) states:
"(b) 'Benefit' means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.
(e) 'Compensation' mean money or thing of value received, or to be received, from any person for services rendered.
(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; 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.
(i) 'Income' means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.
(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.
(m) 'Person' means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.
(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."
Code Section 25-4-105(1), (2) and (5) 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.
(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information."
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. 99-094-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.
The facts submitted by the requestor are not sufficient for the Commission to determine what is the requestor's specific definition of an "independent contractor." The Commission believes that the requestor's intent was to identify an individual or entity that is a contractor with a governmental entity that does not in such relationship with the governmental entity qualify as a public servant of the governmental entity.
Therefore, this opinion is written with the understanding that the requestor's reference to an independent contractor is an individual or entity that is not a public servant of the Yazoo-Mississippi Delta Levee District.
A review of the laws establishing both the Yazoo-Mississippi Delta Levee District and the Yazoo Mississippi Delta Joint Water Management District reveal that they are separate governmental entities, as defined in the above cited Code Section 25-4-103(h), for purposes of the state conflict of interest laws.
It is not as such a violation of the state conflict of interest laws for an independent contractor with the Yazoo-Mississippi Delta Levee District to serve as a board member of the Yazoo Mississippi Delta Joint Water Management District.
However, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, would prohibit a board member of the Yazoo Mississippi Delta Joint Water Management District from being an independent contractor with the Yazoo-Mississippi Delta Levee District should the board of the Yazoo Mississippi Delta Joint Water Management District in any way authorize the board member's contract with the Yazoo-Mississippi Delta Levee District during the board member's term or within one year thereafter.(1)
The requestor is cautioned to advise the commissioner of the joint water management district that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2). Even without a 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.
Furthermore, an independent contractor of a governmental entity who is serving as a board member of a totally separate governmental entity must remain keenly aware of the above cited Code Section 25-4-105(1) and (5), and Code Section 25-4-101.
Code Section 25-4-105(1) prohibits a public servant from using his official position to obtain a pecuniary benefit for himself, a relative or a business with which he is associated.
To avoid using his official position to obtain a pecuniary benefit, the public servant must totally and completely recuse himself from any subject matter providing the pecuniary interest. An abstention is a vote with the majority of the governmental 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 governmental entity's board should state the public servant left the meeting by showing him or her absent for that matter.
Therefore, a commissioner of the joint water management district is advised that the only way he can be certain to avoid violating Code Section 25-4-105(1) is to recuse himself from all matters coming before the joint water management district that concern a levee district with which he is currently an independent contractor.
Code Section 25-4-105(5) prohibits a public servant from disclosing nonpublic information obtained in the course of or by reason of his or her official position or employment in any way that could result in a pecuniary benefit for the public servant or any other person. As defined in Code Section 25-4-103(m), cited above, "person" would mean an independent contractor and where appropriate a governmental entity.
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.
Clearly, an independent contractor with a levee district being directly or indirectly involved with matters concerning the levee district that are before a joint water management district of which he is a board member has the potential of creating suspicion among the public and reflecting unfavorably upon both governmental entities. Therefore, this is another reason why a commissioner of a joint water management district should totally and completely recuse himself from any matter coming before the joint water management district board that concerns a levee district with which the commissioner is a current independent contractor.
Ronald E. Crowe
Executive Director
1. The Mississippi Supreme Court, in Frazier v. State, 504 So . 2d 675 (1987), held that an order of a public official's board that appropriates funds that directly or indirectly benefit the public official through a governmental contract is part of the contract authorization process.