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 an appointed member of a statutorily created state commission, charged with regulating certain licensees in the state, also serve in a leadership role in the trade association created for the regulated licensees?

ISSUE 2: May an appointed member of a statutorily created state commission also serve as a trustee for a political action committee of the licensees his commission is responsible for regulating, with the political action committee making monetary contributions to candidates for political office?

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)(v), (h), (l), (p)(i)(ii)(iii) and (q) 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:
 

(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.

(q) ‘Relative’ means the spouse, child or parent.”

Code Section 25-4-105(1), (2), (3)(d) 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.

(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.

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

A State Commission is a statutory body created by the Mississippi Code.  The Commission is composed of five (5) licensees, each of whom is appointed by the Governor and confirmed by the Senate.  The Commission is charged with the protection of the public by regulating the licensees in a particular industry.  The majority of those licensed professionals in the state of Mississippi are members of a National Association.  At the present time, all of the Commissioners of the Commission happen to be Association Members.  That means that each is a member of the trade association, the National Association; as well as state and local affiliates of this organization.  Many of the members of the Commission, both past and present, have at various times held leadership roles in the National Association, the Mississippi Association and a local Board.

Currently, one member of the Commission serves in a leadership role as a local board President, a state Vice-President, and a Trustee (Vice-Chair) of the Mississippi Committee.

The questions are: (1) Does being an Officer (including membership on the Board of Directors and the Executive Committee) of an association in an industry regulated by the Commission pose any conflict of interest?  If so, is the only remedy for such a conflict, the withdrawal from the leadership role in this association or organization?

(2) Does being a Trustee for the Political Action Committee of an industry regulated by the Commission pose a conflict of interest if that Trustee is directly involved in the decision making process concerning monetary or in-kind contributions to candidates for political office? If so, is the only remedy for such a conflict, the withdrawal from participation on the committee?

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

ISSUE 1: The conflict of interest laws do not as such prohibit an individual from serving as a state appointed commission member while also serving in a leadership role for a trade association created to serve licensees the commission is responsible for regulating.

However, the commission member must remain aware of Code Section 25-4-105(1), cited above, which prohibits a public servant from using his official position to obtain a pecuniary benefit, other than that provided by law, or to obtain a pecuniary benefit for any relative or any business with which he is associated.

This means the commission member must totally and completely recuse himself from all matters coming before his commission related to the trade association to avoid violating Code Section 25-4-105(1).

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 a 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 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, a 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 commission member is also prohibited by Code Section 25-4-105(3)(d), cited above, from performing any service for any compensation during his term of office by which he attempts to influence a decision of the commission. Therefore, the commission member is prohibited from trying to influence the commission through his position with the trade association if he is compensated by the trade association.
 

The commission member must also be made aware of a possible violation of Constitutional Section 109 and Code Section 25-4-105(2), both cited above, should the commission enter into a contract with the trade association.

Constitutional Section 109 and Code Section 25-4-105(2) prohibit a commission board member from having an interest, whether direct or indirect, in any contract authorized by the commission board he serves during his term or for one year after the expiration of his term.  The commission member would have an interest in the contract with the trade association as a member of the trade association and in his leadership position within the association.

The requestor is cautioned to advise the commission 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 the commission member’s vote, the authorization by the commission member’s board, nonetheless, results in a contract in which the commission member 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, the commission member holding a leadership role in a trade association that represents licensees the commission is charged with regulating, has the potential of creating suspicion among the public and reflecting unfavorably upon the state.  Therefore, such circumstances should be avoided when possible.  However, Code Section 25-4-101 is another reason why the commission member must totally and completely recuse himself from all discussions, actions and decisions concerning the trade association if the circumstance is not avoided.

Additionally, Code Section 25-4-105(5), cited above, prohibits a commission member from using or disclosing non-public information gained through his job that could result in a pecuniary benefit to himself, any relative or any other person, if the information has not been communicated to the public or is not public information.  Person means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate, a governmental entity.
 
Therefore, the commission member would be in violation Code Section 25-4-105(5) should he use non-public information gained by way of his position as commission member that could provide a pecuniary benefit not only to himself, but also, the trade association he serves.

ISSUE 2: The appointed commission member is not as such prohibited from serving on the political action committee (PAC) of the licensees his commission is responsible for regulating, with the PAC making monetary contributions to candidates for political office.

However, the commission member should avoid being a party to decisions within the PAC where the PAC makes contributions to the public appointing authority that appointed the commission member to the commission.  Actions by the commission member, such as making a decision within a PAC to provide a contribution to a political official, who also appointed the commission member, has the potential of creating suspicion among the public and reflecting unfavorably upon the state and thereby acting contrary to the state’s public policy mandate set forth in Code Section 25-4-101.

As stated above, Code Section 25-4-101 sets the tone for the conflict of interest laws as the Legislature’s “Declaration of Public Policy,” and can best 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.
 
 
 
 
 

Scott Rankin
Executive Director