This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 4, 2001, basing its approval solely on the facts and circumstances stated herein.

May a legislator be employed by a county as director of the county's office of planning and development?

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)(v), (h), (l), (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; 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.

(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.

(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 (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."

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.

The state conflict of interest laws do not as such prohibit a legislator from being employed by a county when the legislator's compensation is to be funded entirely with local funds that have not been authorized and/or appropriated by the Legislature.

Notwithstanding the above, a legislator serving as a county's director of office of planning and development raises serious conflict of interest law concerns. It is very common for a local government department that directs planning, building, housing and development to be eligible to receive federal or state funding through state agencies by way of the State Legislative appropriation process. Therefore, as a precaution the following discussion is provided.

A legislator must remain aware of the prohibitions imposed by the above cited Constitutional Section 109 and Code Section 25-4-105(2) should he be employed by a local government as director of a department that is to be responsible for managing and receiving funds from a grant or contract authorized by the State Legislative appropriation process.

Constitutional Section 109 and Code Section 25-4-105(2) absolutely prohibit a legislator from being interested, directly or indirectly, in any contract authorized by the Legislature, including authorization by funding, during the legislator's term or for one year thereafter.⁽¹⁾

Funding received by way of the State Legislative appropriation process, even if a modest amount compared to a local governmental department's overall funding, that directly or indirectly fund a legislator's employment contract with a local government violates Constitutional Section 109 and Code Section 25-4-105(2).

Also, funding provided through the State Legislative appropriation process to a local governmental department that is of such a sufficient amount that the local governmental department's need to exist and operate, and thereby the existence of its director's employment contract with the local government, would be in jeopardy if it did not continue to receive such funding violates Constitutional Section 109 and Code Section 25-4-105(2) when the director is a legislator. The reason being that the legislator's employment contract as director of the local governmental department is obviously dependent on the local governmental department's continued operation which is dependent on the State Legislative funding. This is true even though the state authorized funds are not used to directly fund the legislator's employment contract.

Notwithstanding the above, a legislator who is employed by a county's office of planning and development must also remain keenly aware of the above cited Code Section 25-4-105(1) and (3)(d).

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

Code Section 25-4-105(3)(d) prohibits a public servant, including a legislator, from performing 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.

To absolutely avoid a violation of Code Section 25-4-105(1) and (3)(d), a legislator must totally and completely recuse himself from any and all matters coming before the Legislature, or its committees, that concern his county employer and matters that concern planning, building, housing and development that he is involved with as the county's director of office of planning and development.

An abstention is a vote with the majority of the governing entity's body 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.

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 being employed by a county as its director of office of planning and development is a circumstance that has the potential of creating suspicion among the public and reflecting unfavorably upon the Legislature and the county. This is true due to the fact that such a position as director of a local planning and development office can be expected to be heavily involved in matters such as planning, building, housing and development over which the Legislature has significant control not only in the passage of laws that affect these highly regulated areas but also in the appropriation of funds for use by local governments and sub-grantees in these areas. Therefore, such a circumstance should be avoided whenever possible in order to fully and completely comply with the public policy mandate set forth in Code Section 25-4-101.
 

Ronald E. Crowe

Executive Director

1. An appropriation bill funding programs that allow payments under contracts in which legislators are interested are "laws authorizing the contracts." See Frazier v. State, 504 So. 2d 675 (1987) and Cassibry v. State, So. 2d 1360 (1981).