This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 7, 2001, basing its approval solely on the facts and circumstances stated herein.

ISSUE 1. May a county supervisor be employed by a community college funded by the county the supervisor serves?

ISSUE 2. May a county school board member be employed by the county board of supervisors as a county road manager?

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

"(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.

(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) and (2) 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."

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. 95-131-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.

ISSUE 1. Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a member of a governmental body, including a county supervisor, from having an interest, direct or indirect, in any contract authorized by that governmental body during his term and for one year thereafter.

Section 37-29-141, 1972 Mississippi Code Annotated (amended), gives county boards of supervisors discretionary authority to fund community colleges over and above the minimum mandatory amount set forth in Code Section 37-29-141 as of October 1, 1989.

As set forth in the attached Advisory Opinion No. 95-131-E, a county supervisor is prohibited by Constitutional Section 109 and Code Section 25-4-105(2) from being employed by a community college funded by the county supervisor's board during the county supervisor's term and for one year thereafter, when any funding provided by the county to the community college during the supervisor's term is non-discretionary or, in other words, is more than the minimum mandatory amount required by Code Section 37-29-141.

This 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.

Unlike the circumstance presented in the attached Advisory Opinion No. 95-131-E where the county supervisor had left office and was within the one year period after the end of his term, the requestor is still serving as a county supervisor. Therefore, the public policy and public trust mandates set forth in Code Section 25-4-101 are clearly applicable in this instance.

Assuming the county is only providing the community college the minimum mandatory amount of funding, the requestor's acceptance of employment with the community college would prohibit the county board of supervisors from funding the community college above the minimum mandatory amount as to do so would result in a violation of Constitutional Section 109 and Code Section 25-4-105(2) due to the requestor's employment with the community college.

Certainly, such a circumstance brought about by a county supervisor's employment with a community college is a circumstance that will create suspicion among the public and reflect unfavorably upon the county and the community college.

Therefore, the public policy and public trust mandates set forth in Code Section 25-4-101 are sufficient to prohibit a community college from offering employment to a current county supervisor serving a county that funds the community college and to prohibit a current county supervisor serving a county that funds the community college from accepting employment with the community college.

The attached Advisory Opinion No. 93-096-E or any other prior opinion of this office that is or may be inconsistent with this opinion is hereby amended to the extent of such inconsistency.

ISSUE 2. It is not as such a violation of the conflict of interest laws for a county school board member to simultaneously serve as a county road manager. This is based on the understanding that this Commission is aware of no statutory authority for the county school system to fund the county road department.

Notwithstanding the above, a county school district board member employed as a county road manager must remain keenly aware of the above cited Code Section 25-4-105(1) and Code Section 25-4-101.

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

To avoid using their official positions to obtain a pecuniary benefit, the public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests. 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.

Therefore, the requestor is advised that the only way the county school board member could be certain to avoid violating Code Section 25-4-105(1) is to recuse himself from all matters coming before the county school board that concern the county should he accept employment with the county.

This 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 county employee's direct or indirect involvement with matters concerning his employing county that are before the county school board of which the county employee is a member has the potential of creating suspicion among the public and reflecting unfavorably upon the county school district and the county. This is another reason why the county school board member must recuse himself from all matters coming before the county school board that concern the county should he accept employment with the county.

In addition, the requestor is advised that a circumstance can exist that would cause a violation of Constitutional Section 109 and Code Section 25-4-105(2), both cited above, should a board member of one governmental entity be employed by a separate governmental entity.

Such a circumstance involves the existence of contracts between the two governmental entities in which the public servant would have an inherent interest and/or a private pecuniary benefit.

Constitutional Section 109 and Code Section 25-4-105(2) would prohibit a county school board member from directly or indirectly having an inherent interest and/or receiving a pecuniary benefit from his county school board or his employing county as a result of any contracts existing between the two governmental entities.

The requestor is cautioned to advise the county school board member 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 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