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 the spouse of a legislator have an ownership interest in a medical practice that receives Medicaid funds?

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 25-4-103(c), (e), (f)(i)(ii), (g)(v), (h), (i), (o), (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.

(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.

(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.

(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.

(q) ‘Relative’ means the spouse, child or parent.”

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 provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
 

I am the newly elected State Senator from my District.  I am a consultant by profession, but I am married to a practicing physician.  My husband has medical offices in several cities.  He estimates that approximately 3-5% of the patients he treats have Medicaid, either as their primary or secondary insurance carrier.  Of course, I have no participation whatsoever in his office management, nor do I have any access to his records.  My main concern is that there may be some perceived conflict of interest if I should be called on to vote on Medicaid reimbursement for physicians, or some other scenario that may impact Medicaid.

I would be very grateful if the Ethics Commission would review my situation and give me an official opinion regarding my options on these types of voting dilemmas.  I would be happy to attend a meeting and respond to questions in more detail, if you or the other Commission members may desire.

The Commission formally adopts Advisory Opinion No.  94-148-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.

The Commission has addressed similar questions as the one presented herein by the current requestor.  Specifically, in the attached Advisory Opinion No. 94-148-E, Issue 3, the Commission opined that a legislator’s spouse having an ownership interest in a senior citizen daycare center which receives Medicaid payments results in the legislator having a prohibited indirect interest in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2).

In this instance, the requestor’s spouse’s ownership interest in the medical practice is in effect the same type circumstance as the legislator’s spouse’s interest in the senior citizen daycare center addressed in the attached opinion.

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) will prohibit the requestor’s spouse’s medical practice from having a Medicaid agreement with the state and from receiving Medicaid payments by way of a Medicaid agreement when the Medicaid payments will be funded through an appropriation bill passed by the Legislature during the requestor’s term or for one year thereafter.¹

The requestor is advised 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.²  [Emphasis added to bold text]

Also, the requestor is advised that there is an action, Jones, et al. v. Howell, et al., Civil Action No. G-95-1579 S/2, currently on appeal to the State Supreme Court from the Chancery Court of the First Judicial District of Hinds County that concerns the application of Constitutional Section 109 to legislators and legislators’ businesses that are Medicaid providers with the state.  How this action will affect this advisory opinion or the attached advisory opinions will not be known until the State Supreme Court issues its decision.
 
 

Ronald E. Crowe
Executive Director
 

¹ The Mississippi Supreme Court in Frazier v. State, 504 So. 2d 675 (1987 and in Cassibry v. State, 404 So. 2d 1360 (1981), ruled that an appropriation bill funding programs that allow payments under contracts in which legislators are interested are laws authorizing the contracts.

² See Waller v. Moore, 604 So. 2d 265 (Miss. 1992), wherein the Mississippi Supreme Court ruled, “Waller argues that his negative vote on hiring his wife insulated him from the violations and liabilities . . . There is no such provision exempting him from the prohibition of Section 109 and 25-4-105(2).  It is his interest in his wife’s contract, not his vote, that is prohibited.”