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 company maintain an existing sixteenth section land lease when the principal owner of the company has been elected to serve on the county board of supervisors?

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(f)(i)(ii), (g)(i)(ii)(iii)(iv)(v), (h) and (p)(i)(ii)(iii) states:
 

“(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;

(iii) All school districts;

(iv) All courts; 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.

(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(2) states:
 

“(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.”

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. 97-148-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 set forth in the attached advisory opinion, the county board of supervisors is required to act on sixteenth section lease contracts as proposed by the board of education by either approving or rejecting the proposed rental amounts.  Even if the county board of supervisors rejects a sixteenth section lease and the appointed appraisers, as authorized by state law, approve a rental amount, the county board of supervisors may appeal that decision to the chancery court.  Also, all sixteenth section land lease contracts are required to be signed by the president of the board of supervisors.¹
 
In addition, the board of supervisors has discretion under Code Section 29-3-82(d) and therefore does not fall under the non-discretion exception carved out by the Supreme Court in Frazier, supra.

Also as set forth in the attached advisory opinion, the Mississippi Supreme Court in Frazier v. State, 504 So. 2d 675 (1987), set out four elements that must exist for there to be a violation of Constitutional Section 109, cited above.  These four elements equally apply in determining if a violation of Code Section 25-4-105(2), cited above, has occurred.  The necessary elements are:
 

1.  Is there a governmental contract (with the state, county, municipality or district)?

2.  Does the public officer have an interest (direct or indirect) in the contract?

3.  Is the contract authorized by a law passed or order made by a board or public body of which the public officer is a member?

4. Was the “authorizing” law or order passed or made during the public officer’s term or within one year after the expiration (or termination) of such term?

It is clear from the sixteenth section land laws that a sixteenth section land lease contract may not be entered into without the approval of the county board of supervisors.  Therefore,  the county board of supervisors action is part of the authorization of the sixteenth section land lease contract.

Furthermore, a sixteenth section land lease contract is clearly a governmental contract.

In addition, the supervisor-elect in this instance certainly has an interest in the sixteenth section land lease contract in which his company is the lessor.

Therefore, clearly elements 1, 2, and 3 are met in this instance.

However, in regard to element 4,  the subject sixteenth section land lease contract was not entered into during the term of office of the supervisor-elect or within one year thereafter.

Therefore, the four elements set forth in Frazier, supra, were not present when the supervisor-elect’s company leased the sixteenth section land from the county school district.

Based on the above, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, do not prohibit the supervisor-elect’s company from retaining its existing sixteenth section land lease contract as its authorization by the county board of supervisors was not during his term or within one year thereafter.

Constitutional Section 109 and Code Section 25-4-105(2) will prohibit the supervisor-elect’s company from entering into sixteenth section land lease contracts in the future if said future lease contracts will be authorized by the county board of supervisors during his term or within one year thereafter.

Notwithstanding the above, 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 supervisor-elect’s involvement in sixteenth section land lease matters once he is sworn into office when his company is a lessor of sixteenth section land has the potential of creating suspicion among the public and reflecting unfavorably upon the county.

Therefore in order to comply with the public policy mandate in Code Section 25-4-101, the requestor is cautioned to advise the supervisor-elect to totally and completely recuse himself from any matter concerning sixteenth section land leases once he is sworn into office.

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 supervisor-elect 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.
 
 

Ronald E. Crowe
Executive Director
 

¹ SEC. 29-3-1. Board of education to have control; management of lands and funds as trust property; disapproval by board of supervisors of rental value of lands; definitions.

(2) In the event the board of supervisors declines to approve the rental value of the land set by the board of education, the board of education shall within ten (10) days appoint one (1) appraiser,  the board of supervisors shall within twenty (20) days appoint one (1) appraiser and the two (2) appraisers so appointed shall within twenty (20) days appoint a third appraiser whose duty it shall be to appraise the land, exclusive of buildings and improvements, the title to which is not held in trust for the public schools, and to file a written report with each board setting forth their recommendation for the rental value of the land within thirty (30) days. The cost of the appraisal shall be paid from any available sixteenth section school funds or other school funds of the district. If no appeal is taken within twenty (20) days as provided hereunder, the lease shall be executed in accordance with said recommended rental value within thirty (30) days of the receipt of the appraisers' report. In the event any party is aggrieved by the decision of the appraisers setting forth the appraised rental value, the party so aggrieved shall be entitled to an appeal to the chancery court in  which the land is located. Such appeal shall be taken within twenty (20) days following the decision. The chancery court, on appeal, may review all of the proceedings, may receive additional evidence, and make findings of fact, as well as conclusions of law to insure that a fair and reasonable return may be obtained on the sixteenth section lands or lands in lieu thereof. [Emphasis added to bold text]

SEC. 29-3-82. Leasing of land not classified as agricultural land.

The following procedure shall be followed for the leasing of sixteenth section school lands or lands granted in lieu thereof which are not classified as agricultural land:

(d) The superintendent of education shall then present the lease to the board of supervisors of the county where such land is located. Within thirty (30) days of the receipt of the lease, the board of supervisors shall accept or reject the proposed rental amount.

(e) If the board of supervisors accepts the lease as proposed by the board of education, the superintendent of education shall execute the lease to the applicant under the terms and conditions set forth in the  lease.

(f) If the board of supervisors refuses to accept the rental value set by the board of education in the proposed lease, the rental value of the lease shall be determined under the provisions set forth in section 29-3-1(2).

(g) All sixteenth section or lieu land leases shall be reduced to writing and signed in triplicate by the president of the board of supervisors, the president of the board of education and the superintendent of education. The chancery clerk shall certify one (1) copy of the lease to the superintendent of education and one (1) copy to the state land commissioner, and shall record the original on the deed records of the county, abstract the lease as a mesne conveyance, and record it on the minutes of the board of supervisors. The chancery clerk shall charge and collect from the lessee the full recording fees. [Emphasis added to bold text]