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 6, 2002, basing its approval solely on the facts and circumstances stated herein.

ISSUE 1: May a county supervisor, whose board levies the maximum millage in  support of the community college, be an employee of the community college?

ISSUE 2: May a county supervisor or the supervisor’s business, whose board levies the maximum millage in  support of the community college, contract with, purchase from or sell to the community college?

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(c), (d), (f)(i)(ii), (g)(i)(v), (h), (l), (o) and (p)(i)(ii)(iii)  state:
 

“(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)(b)  state:
 

“(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.

(b) Be a purchaser, direct or indirect, at any sale made by him in his official capacity or by the governmental entity of which he is an officer or employee, except in respect of the sale of goods or services when provided as public utilities or offered to the general public on a uniform price schedule.”

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

I have researched what I consider to be the applicable law regarding the question concerning: Whether a member of a county board of supervisors may lawfully contract with, be an employee of or be hired on an adjunct, sporadic or other non-full time basis, to do work or perform services for or to purchase from or sell to, a local community college district which is funded in part by ad valorem tax millage levied by the board of supervisors of which the requestor is a member, where the particular board of supervisors has already reached the maximum millage levy which the particular county is lawfully allowed to levy in support of the community college district and the board of supervisors, being “capped out”, is not allowed by statute either to increase or decrease the amount of ad valorem taxes which the particular county produces for the community college district?  The only variable is the taxes which will be produced by “new growth” which are added automatically by statute to the levy yield for the community college district and over which the board of supervisors has no discretion.  In short, the member has no discretion, since the county has maxed out in its levy contribution to the community college district, the county can neither go up nor down in its levy of taxes for the college, and the county must levy the amount required by the community college district, subject to the statutes which cap increases statutorily.

 
I am aware of Official Advisory Opinion No. 99-018-E of the Mississippi Ethics Commission.  Opinion No. 99-018-E, however, involved a different situation where the county there was limiting its contributions to the “mandatory minimal amount imposed by statute”, whereas, in the case today submitted for opinion, our county has reached the maximum amount allowed by statute and is required by statute to continue providing such maximum amount, without any discretionary authority to reduce or increase the amount, unless the community college subsequently requests less than the maximum amount, in which case the county would still be mandated to provide the amount requested by the college.  Accordingly, there is no room for negative or detrimental effects to the board of supervisors, the community college, or the public at large, since the member has absolutely no discretion in the matter of funding and support of the community college district.

I shall appreciate an Official Opinion of the Office of the Attorney General for the State of Mississippi, Technical Assistance from the Office of the State Department of Audit, and an Official Advisory Opinion of the Mississippi Ethics Commission, respectively, addressing the above question.

If this matter already has been addressed by Opinion of the Attorney General, Technical Advice of the State Auditor, or Official Advisory Opinion of the Ethics Commission, I shall appreciate an early facsimile transmission of such prior Opinion in order to expedite compliance with the Opinion or Advice.

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

Issue 1: A county supervisor may be employed by the community college his or her county funds through a tax levy only if the current funding of the particular community college by the county board of supervisors is a maximum mandatory amount set by statute and said levy cannot be reduced from the previous year, removing the funding discretion from the county board of supervisors.  Based on the facts presented by the requestor, it appears the county board has removed the board’s discretionary funding of the community college, thereby allowing the supervisor to be employed by the college.

Constitutional Section 109 and Code Section 25-4-105(2), both cited above, would prohibit the requestor, as a county supervisor, from being employed by the community college if the county board of supervisors provided any discretionary funding to the community college during his term or one year thereafter.  An order of a public official’s board that appropriates funds, directly or indirectly benefitting the public official through a governmental contract, is part of the contract authorization process.

 
Additionally, the requestor’s employment by the community college is in essence a contract for employment,  therefore, the requestor must be aware of Code Section 25-4-105(3)(a), cited above, which prohibits a public servant from contracting with the governmental entity that he is a member.

However, the supervisor will not  violate Code Section 25-4-105(3)(a) should he be hired by the community college based on the county and the community college being separate governmental entities as defined by Code Section 25-4-103(g)(h).

Issue 2: Concerning Constitutional Section 109 and Code Section 25-4-105(2) and the requestor’s ability to contract with the community college his or her county funds through a tax levy, the requestor, as county supervisor, may contract with the community college based on the same explanation provided above in Issue 1 in that the county is funding the community college a maximum mandatory amount set by statute and said levy cannot be reduced from the previous year, removing the funding discretion from the county board of supervisors.

In addition, the requestor must be aware of Code Section 25-4-105(3)(a), which prohibits a public servant or a business that a public servant has a material financial interest, from contracting with or being a vendor to the governmental entity that he is a member.

However, the supervisor will not  violate Code Section 25-4-105(3)(a), should he or his business contract with or sell goods or services to the community college based on the county and the community college being separate governmental entities as defined by Code Section 25-4-103(g)(h).
 
Code Section 25-4-105(3)(b) addresses the requestor’s ability as county supervisor to purchase from the community college.  Code Section 25-4-105(3)(b) states a public servant is prohibited from purchasing from a governmental entity of which he is an officer or employee, except when provided to the general public.  As stated above, the county and the community college are separate governmental entities, and therefore, the requestor is not prohibited by the conflict of interest laws from purchasing from the community college.

Notwithstanding the above, a county supervisor, whose board funds the community college, choosing to be an employee, contractor, purchaser or vendor with the community college 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 he can be certain to avoid violating Code Section 25-4-105(1) is to recuse himself from all matters coming before the county board of supervisors that concern a community college employing the requestor or contracting with the requestor by way of his business.

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 supervisor’s direct or indirect involvement with matters concerning his employing community college or the community college with which he contracts that are before the board of supervisors has the potential of creating suspicion among the public and reflecting unfavorably  upon the community college and the county.  This is another reason why the requestor is advised to recuse himself from all matters coming before the board that concern the community college.

In addition, the requestor is advised that another type of circumstance can exist that would cause a violation of Constitutional Section 109 and Code Section 25-4-105(2) should a board member of one governmental entity be employed by or contract with 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 supervisor from directly or indirectly having an inherent interest and/or receiving a pecuniary benefit from his county or the community college as a result of any contracts existing between the two governmental entities.

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 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.
 
 
 

Scott Rankin
Executive Director