This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 1, 2000, basing its approval solely on the facts and circumstances stated herein.

May a non-emergency transportation company contracting with a state agency operate within a region under the supervision of a coordinator with the state agency when the coordinator has direct involvement as to which non-emergency transportation company in his region will be utilized for transports and when the company is owned by the coordinator's father and formally employed the coordinator's spouse?

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 25-4-101 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(c), (d), (f)(i)(ii), (g)(v), (h), (k)(i)(ii)(iii)(iv), (l), (p)(i)(ii)(iii) and (q) states:

"(c) 'Business' means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a nonprofit corporation or other such entity, association or organization receiving public funds.

(d) 'Business with which he is associated' means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.

(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.

(k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00);

(iii) The income as an employee of a relative if neither the public servant or relative is an officer, director or partner in the business and any ownership interest would not be deemed material pursuant to subparagraph (i) or (ii) herein; or

(iv) The income of the spouse of a public servant when such spouse is a contractor, subcontractor or vendor with the governmental entity that employs the public servant and the public servant exercises no control, direct or indirect, over the contract between the spouse and such governmental entity.

(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.

(q) 'Relative' means the spouse, child or parent."

Code Section 25-4-105(1), (3)(a) and (4)(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.

(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:

(d) May be a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which is a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent: (i) where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws; or (ii) where the contractual relationship involves the further research, development, testing, promotion or merchandising of an intellectual property created by the public servant."

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

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

Code Section 25-4-105(1), cited above, prohibits a public servant, including the state agency's coordinator, from using his official position to obtain a pecuniary benefit for a relative or a business with which he is associated.

Code Section 25-4-103(q), cited above, defines "relative" as a "spouse, child or parent" for purposes of the state conflict of interest laws. [Emphasis added to bold text]

Code Section 25-4-103(d), cited above, in part defines "a business with which he is associated" as "any business of which a public servant or his relative is an . . . owner . . . employee . . . or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income." [Emphasis added to bold text]

The non-emergency transportation company being owned by coordinator's father brings the prohibition imposed by Code Section 25-4-105(1) into play through both the "relative" and "a business with which he is associated" definitions.

Therefore, Code Section 25-4-105(1) would prohibit the state agency's coordinator from using his official position to utilize his father's non-emergency transportation company for transports within his region.

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, the state agency's coordinator's utilization within his region of his father's non-emergency transportation company has the potential of creating suspicion among the public and reflecting unfavorably upon the state agency.

Therefore, to avoid a violation of Code Section 25-4-105(1) and to comply with the public policy mandate set forth in Code Section 25-4-101 the state agency's coordinator must totally and completely recuse himself from any decision to utilize his father's non-emergency transportation company.
 
 
 
 

A total and complete recusal requires that the public servant avoid debating, discussing or taking action on the subject matter with staff or any other person including 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. Also if applicable, any minutes should state the public servant left the meeting by showing him or her absent for that matter.

The state agency's actions in amending the father's non-emergency transportation contract to remove from his company's service area those counties which are in the region in which the state agency's coordinator works are sufficient to allow the state agency's coordinator to totally and completely recusal himself from matters pertaining to the utilization of his father's non-emergency transportation company. This is with the understanding that the state agency's coordinator does not discuss with other coordinators the utilization of his father's non-emergency transportation company within their regions.

Even though the coordinator's spouse is no longer employed by the coordinator's father's transportation company, the requestor is cautioned to advise the coordinator of the following.

The above described prohibition imposed by Code Section 25-4-105(1) and the public policy mandate set forth in Code Section 25-4-101 brought about by the coordinator's father's ownership of the transportation company would also be brought into play by the coordinator's spouse being employed by the transportation company should the coordinator's region be included in the transportation company's service area.

Also, the requestor is cautioned to advise the coordinator that Code Section 25-4-105(3)(a), cited above, prohibits the state agency from contracting with his father's transportation company if the coordinator's spouse has a material financial interest in the transportation company.

A material financial interest is defined in the above cited Code Section 25-4-103(k)(i)(ii)(iii)(iv).

Should the coordinator's spouse have a material financial interest in the transportation company, then the only exception to the prohibition imposed by Code Section 25-4-105(3)(a) is found in the above cited Code Section 25-4-105(4)(d). This exception is where the "services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchasing laws."
 
 

It is the Commission's opinion that the geographical boundary of a governmental entity, or as in this case a region, is not sufficient by itself to set in motion the above exception. In most if not all areas of the state, goods and services are reasonably available in neighboring regions.

The requestor is cautioned to advise the coordinator that a recusal will not prevent a violation of Code Section 25-4-105(3)(a) from occurring. It is the coordinator's spouse's material financial interest in the transportation company and not the coordinator's involvement with the transportation company's contract that results in a violation of Code Section 25-4-105(3)(a).
 
 
 
 
 
 

Ronald E. Crowe

Executive Director