This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on August 3, 2001, basing its approval solely on the facts and circumstances stated herein.

May an executive director of a state commission upon resigning her position accept employment with a private nonprofit entity that received a grant from the state commission when the grant and its related contracts are totally concluded?

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

(m) 'Person' means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.

(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), (3)(e) and (5) 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:

(e) Perform any service for any compensation for any person or business after termination of his office or employment in relation to any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated during the period of his service or employment.

(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information."

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 supplemental documentation provided by the requestor is not attached to this opinion due to the volume of material provided but is available in the Commission's office absent any identifying data.

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

Code Section 25-4-105(3)(e), cited above, is the only Ethics in Government law that specifically prohibits the actions of former public servants who were not members of a governmental body or governmental board. [Emphasis added]

Code Section 25-4-105(3)(e) prohibits a former public servant from being compensated by a business after the former public servant leaves his public employment if the former public servant is compensated for performing services related to "any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated" during the former public servant's public employment.

Although the terms "any case, decision, proceeding or application" do not specifically include the word "contract," the terms are sufficiently broad to include a contract in the Code Section 25-4-105(3)(e) prohibition.

Also, the private nonprofit entity which the requestor will be employed by is within the definition of "business" set forth in the above cited Code Section 25-4-103(c).

Code Section 25-4-105(3)(e) does not prohibit a former public servant from being compensated for providing services, including services as an employee, to a business that contracts and/or contracted with the former public servant's governmental authority, unless the compensation for performing services is related to "any case, decision, proceeding or application" [or contract] with respect to which the former public servant was directly concerned or in which he personally participated. [Emphasis added to bold text]

As the state commission's executive director, the requestor would have been directly concerned with or have personally participated in every "case, decision, proceeding or application" of the state commission whereby funding was provided to a business.

However, in this instance, the requestor's facts clearly show that the grant and its related contracts have already been awarded by the state commission. Based on theses facts, the requestor's employment compensation from the private nonprofit entity will be unrelated to the grant and its related contracts because the process, decisions, application and contracts related thereto are complete and final and there is no further action necessary on the part of either the private nonprofit entity or the state commission. Therefore, Code Section 25-4-105(3)(e) will not prohibit the requestor as the state commission's former executive director from accepting the employment position with the private nonprofit entity contracting with the state commission as the requestor's compensation cannot be related to a matter that is totally concluded. This is with the understanding that the interim report for release of the second year of funds to the private nonprofit entity is completed prior to the requestor's employment date of December 1, 2001, or that if the interim report is not completed by said date, the requestor is not involved on behalf of and therefore not compensated by the private nonprofit entity in relation to the interim report. [Emphasis added to bold text]

The requestor is also referred to the above cited Code Section 25-4-105(1) and (5).

Code Section 25-4-105(1) prohibits public servants from using their official positions to obtain a pecuniary benefit for themselves, their relatives or businesses with which they are associated.

Regarding Code Section 25-4-105(1), the question is whether the requestor used her position as the state commission's executive director to obtain a pecuniary benefit. The pecuniary benefit being the employment position with the private nonprofit entity.

To "use his or her official position," a public servant must have some belief or expectation that his or her activities or inactivities would lead to the pecuniary benefit. However, it is not required that his activities or inactivities constitute a misuse of his official position to violate Code Section 25-4-105(1).

As an example, a former state employee would violate Code Section 25-4-105(1) if he or she was able to obtain information or materials while employed by the state agency that made it feasiblely and financially advantageous for a private sector entity to employ or otherwise compensate the former state employee. No facts have been presented to show or infer that such a use of office was involved in this instance. This is with the understanding that the requestor as the state commission's executive director has totally and completely recused herself from any and all matters concerning the interim report for release of the second year of funds to the private nonprofit entity since seeking and/or being offered the position of employment by the private nonprofit entity. [Emphasis added to bold text]

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.

Code Section 25-4-105(5) prohibits public servants or former public servants from intentionally using nonpublic information obtained by reason of their public employment that could result in a pecuniary benefit to themselves, their relatives or any other person. The private nonprofit entity is within the definition of "person" set forth in the above cited Code Section 25-4-103(m).

To support a violation of Code Section 25-4-105(5), it would be necessary to show that a former state employee intentionally used nonpublic information gained during his or her public employment to obtain employment or other benefits from a private entity. No facts have been presented to show or infer that nonpublic information was involved in this instance. Certainly, the requestor would violate Code Section 25-4-105(5) if she provides nonpublic information that benefitted the private nonprofit entity in relation to its interim report for release of the second year of funds which was gained during her employment with the state commission. [Emphasis added to bold text]

Ronald E. Crowe

Executive Director