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

May a legislator serve as the executive director for a nonprofit corporation which has as its purpose to raise money for the advancement of a community college?

Your opinion request to the Office of the Attorney General dated November 29, 1999, was referred by that Office to the Mississippi Ethics Commission on December 1, 1999, as your request involves the above issue that concern the Mississippi 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:

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(c), (d), (e), (f)(i)(ii), (g)(v), (h), (l) and (p)(i)(ii)(iii) 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.

(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:
 
(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.”

The Commission formally adopts Advisory Opinion No.  99-119-E in response to this request and by attachment incorporates it into this opinion.

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.

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

Constitutional Section 109 and Code Section 25-4-105(2), both cited above, absolutely prohibit a legislator from having an interest, direct or indirect, in a contract authorized by the Legislature during his term or for one year thereafter.

The funding of a contract by an appropriation passed by the Legislature is part of the contract’s authorization as anticipated in Constitutional Section 109 and Code Section 25-4-105(2).¹

Therefore, the legislator may not be an employee of the nonprofit foundation for the same reason he may not be an employee of the community college if the nonprofit foundation is directly or indirectly funded by the Legislature.

The nonprofit foundation would be directly funded by the Legislature should it receive federal, state or other monies appropriated by the Legislature.  Such direct funding could include funds given to the nonprofit foundation itself or to the community college or some other entity to pass through to the nonprofit foundation.

The nonprofit foundation would be indirectly funded by the Legislature should it receive federal, state or other monies from the community college or any other entity that are available because the community college or any other entity received funding from the Legislature which supplanted the other funding provided to the nonprofit foundation.

Should it be determined that the nonprofit foundation is not or will not receive funding from the Legislature, either directly or indirectly, still the legislator must remain keenly aware of other prohibitions set forth in the state conflict of interest laws other than Constitutional Section 109 and Code Section 25-4-105(2).  The reason the legislator must remain aware of these other prohibitions is due to the very close relationship that exists between the nonprofit foundation and the community college.

Code Section 25-4-105(3)(d), cited above, prohibits a public servant, including a legislator, from being compensated by a person or business, which would include the nonprofit foundation, for performing any service by which he attempts to influence a decision of the authority of the governmental entity of which he is a member, in this instance the Legislature.

Because the nonprofit foundation’s sole purpose for existing is to financially benefit the community college, the legislator’s participation in legislative actions, either on the floor or in committee, that could benefit the community college could indeed be construed as a violation of Code Section 25-4-105(3)(d).

Also, Code Section 25-4-105(1), cited above, prohibits a public servant, including a legislator from using his official position to obtain a pecuniary benefit for himself or a business with which he is associated.

Because the nonprofit foundation’s responsibility is to help raise funds for the community college, then it could be argued under certain circumstances that the legislator’s involvement in legislation that funds the community college is also benefitting the nonprofit foundation.

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, a legislator participating in legislative matters concerning community colleges when the legislator is employed by a foundation which has as its purpose to raise money for the advancement of a community college has the  potential of creating suspicion among the public and reflecting unfavorably upon the Legislature and the community college.

Therefore, the requestor is cautioned to advise the legislator to totally and complete recuse himself from any matters before the Legislature or its committees that concern community colleges should he accept employment with the nonprofit foundation in order that the legislator may be certain to avoid violating Code Section 25-4-105(1) and (3)(d) and to comply with the public policy mandate set forth in Code Section 25-4-101.
 
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.

The requestor is cautioned to advise the 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 a legislator’s vote, the authorization by the Legislature nonetheless results in a contract in which the legislator has a prohibited interest.
 
 

Ronald E. Crowe
Executive Director
 

¹ See Frazier v. State, 504 So. 2d 675 (1987) and Cassibry v. State, 404 So. 2d 1360 (1981).