This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 12, 2002, basing its approval solely on the facts and circumstances stated herein.
 

Issue 1:  May an individual simultaneously hold political office as a city board member and a state legislator?

Issue 2:  May a legislator do business with a county or state governmental entity?

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), (d), (f)(i)(ii), (g)(i)(v), (h), (l), (o) 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.

(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)(a) 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:
 

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the  governmental entity of which he is a member, officer, employee or agent.”

 
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 a councilman of the City, which operates under the council-manager form of government.

I am considering becoming a candidate for the office of State Representative of my County.  The term will begin in January 2004.  My term of office as a Councilman will not end until July 2005.

Please respond to the following questions:

If I were elected to the office of State Representative would I be required to resign as a Councilman before the end of my term?

If I am not required to resign, is there any conflict of interest I need to be concerned about?

I work for an electrical supply business as purchasing manager.  This supply business could from time to time be asked to quote prices and sell electrical material to county and state agencies. (Light bulbs, ballasts, fuses, breakers, etc.)  Also this business could be asked to submit bids to electrical contractors who would be subcontractors to general contractors on state funded construction projects.  The business could also be asked to submit bids for supplies to an electrical contractor who is bidding on a state construction project as prime contractor.  Could any of these situations be a conflict of interest should I be elected to the House of Representatives?

The Commission formally adopts Advisory Opinions No.02-026-E and No.98-111-E in response to this request and by attachment incorporates them into this opinion.

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

Issue 1: The Commission formally adopts the attached Advisory Opinion No. 02-026-E in its entirety as the response to Issue 1 of this request and thereby incorporates Advisory Opinion No. 02-026-E into this opinion since the facts and circumstances are the same.

 
In summary, Advisory Opinion No. 02-026-E states it is not as such a violation of the conflict of interest laws for an individual to serve  simultaneously as an elected municipal board member and as a state legislator.  The finding is based on a municipality and the state being separate governmental entities  under Code Section 25-4-103(g)(h), cited above. Constitutional Section 109 and Code Section 25-4-105(2), both cited above, do not apply as a legislator and a municipal board member are public officers, and therefore, do not hold such  positions by contract. In addition, the attached opinions include cautions concerning the above cited Code Sections 25-4-105(1) and  25-4-101.  This requestor should read the attached opinion in its entirety to obtain a complete understanding of the Commission’s position concerning an individual serving as both a state legislator and councilman.

Issue 2:  Constitutional Section 109 and Code Section 25-4-105(2), both cited above, do prohibit an individual from having an interest in a contract with a governmental entity if he or she is a member of a governmental body, such as the Legislature, that passes laws that allow the governmental entity to contract or appropriate funds to the governmental entity that may fund the individual’s governmental contract.

The requestor is advised that an employee of a business has an interest in his employer’s business contracts for purposes of Constitutional Section 109 and Code Section 25-4-105(2).

Clearly, the Legislature does pass laws that fund state agencies’ material purchases/construction projects and, in some cases, allow counties to enter into contracts and appropriate funds to counties that are used for their operation, including contracts.  Therefore, if the requestor were elected to the Legislature, the requestor’s employer’s business would absolutely be prohibited from contracting to perform work on state projects and could be prohibited from performing work on county projects based on the following explanations.  This includes selling supplies to state agencies as well as selling supplies to contractors and subcontractors of state agencies or for any other state funded projects.

 
The reason a state legislator is prohibited by Constitutional Section 109 and Code Section 25-4-105(2) from having an interest, direct or indirect, in a contract with a state agency is that the State Legislature appropriates funds to state agencies and the State Supreme Court has ruled that the appropriation of funds is part of the contract authorization process.   Advisory Opinion 98-111-E, attached, should be reviewed in its entirety as further support for the Commission’s opinion.

If the requestor proposes contracting with a county, as defined in Code Section 25-4-103(g)(i), cited above, it would be necessary to determine if any legislative funding going to the county would, in fact, fund the legislator’s contracts with the county.  If such legislative funding is being used by the county to fund its contracts with the legislator, then Constitutional Section 109 and Code Section 25-4-105(2), both cited above, would be violated.

Certainly counties, on occasion and for specific purposes, receive funding directly and indirectly from the Legislature.  However, this funding is generally for specific purposes related to grants and loans for promotion of government, industrial, business and social programs.  Such funding is not an appropriation for the general operation of the county.

A county’s general fund and/or road and bridge fund generally are used by the county to purchase its commodities and contractual services for its basic operations.  Assuming the county’s contracts in which a legislator is interested are related to the county’s basic operations, then such contracts would normally be funded from the county’s general fund and/or road and bridge fund.  Both these funds are primarily supported by local ad valorem taxes and certain fuel taxes that are mandated by state statutes.

Therefore after considering the above, Constitutional Section 109 and Code Section 25-4-105(2) do not prohibit a county from contracting with a legislator’s employer’s business when the county is funding its contracts with the legislator’s employer’s business with monies from its general fund and/or road and bridge fund.

However, should the Legislature provide direct or indirect appropriations, during the requestor’s term or one year thereafter, to the county that could be used for the county’s contracts with the legislator’s employer’s business, then such contracts with the county would be in violation of Constitutional Section 109 and Code Section 25-4-105(2).  This includes selling supplies directly to the county as well as selling supplies to contractors or subcontractors of the county on state funded projects.

 
The above cited Code Section 25-4-105(3)(a) would not be violated if the legislator contracts with the county as a county is a separate governmental entity from the state for purposes of the state conflict of interest laws.

Notwithstanding the above, the requestor is advised to remain keenly aware of the above cited Code Section 25-4-105(1).

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 or 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 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 or body should state the public servant left the meeting by showing him or her absent for that matter.

The requestor may avoid violating Code Section 25-4-105(1) by recusing himself from any matter coming before the Legislature that concerns a county doing business with the requestor or his  business when that matter would provide a pecuniary benefit to the legislator or his business.

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) or (3)(a).  Even without a legislator’s vote, the authorization by the Legislature, nonetheless, results in a contract in which the legislator has a prohibited interest. [Emphasis added to bold text]
 
 
 

Scott Rankin
Executive Director