This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on October 4, 2002, basing its approval solely on the facts and circumstances stated herein.
 

ISSUE 1:  May a legislator and/or a legislator’s law firm serve as a business’s general legal counsel when the business has received an infrastructure construction grant from a state board when the grant’s funding has been approved by the Legislature?

ISSUE 2: May a legislator and/or a legislator’s law firm represent a business, that has received an infrastructure construction grant from a state board when the grant’s funding has been approved by the Legislature, on a specific legal matter concerning release of the grant information from the granting state board under the State’s Public Records Act?

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), (e), (f)(i)(ii), g(v), (h), (l) 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.

(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.

(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)(d) 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:
 

 (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.”

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 been asked by a business’s executive officer to request an opinion from your office as to whether I, or any of my firm’s associates are eligible to represent the Business as attorney of record.  I need to know whether our representation of the Business will create a conflict of interest.

I am currently serving as a State Legislator.  I once owned stock in the Business, but divested my interest at its request once it began pursuing a $2.5 million infrastructure grant from a State Board.  This grant has since been awarded and a copy of said grant is attached.

I realize that the State Board grant cannot be used for anything other than infrastructure construction costs, and I certainly do not intend to accept any grant funds in payment of my fees.  I further believe that I should not represent the Business on any matters related directly to the grant proceeds or the disbursement thereof.

However, a specific issue has arisen for which I need your opinion.  The Mississippi Attorney General’s office has notified the Business by letter (see copy attached) that a request has been registered under the Freedom of Information Act for access to the complete grant application submitted by the Business to the State Board.  The Business has requested that I represent them in dealing with this request.  Would my doing so constitute a conflict of interest?  It should be noted that this issue does not relate directly to the grant proceeds.

Please respond to this letter at your earliest convenience.  The final issue alluded to is pending and action needs to be taken as quickly as possible.  I am waiting for your response to determine if I or any of my associates may handle this matter for the Business, and if I or any of my associates may act as its attorney of record and receive pay for services rendered.

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

 
ISSUE 1: A legislator or his firm may contract services to a client to perform work on projects which are not in whole or in part funded and/or authorized by the State Legislature.  Clearly, the proposed services by the legislator or his firm, on behalf of the business, should not be part of the grant approval process, nor should the legal services be paid from the grant’s proceeds.  Facts supplied by the requestor, along with the state awarded grant, specify the proceeds from the grant must be used for infrastructure and other costs related to construction.  Therefore, the legislator and/or his law firm may be the business’s attorney of record for projects completely unrelated to the approval of and/or funding received from the state grant, i.e., the business’s infrastructure construction.

Specifically, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a member of the Legislature from having an interest, direct or indirect, in any contract authorized by the governmental body of which he is a member during his term and for one year thereafter.

The legislator’s interest in the grant contract of the business receiving and using the said grant funds is prohibited by virtue of the legislative appropriation process.

Based on the existing facts and circumstances as understood by the Commission, the  business in question would be unable to operate on a continuing basis  without the legislatively approved state grant, and therefore, there would be no business with which the requestor could contract for legal services over an extended period of time without the state grant. Thus, since the requestor’s client would not be a financially viable business operation without the state awarded infrastructure construction grant, the legislator would violate Constitutional Section 109 and Code Section 25-4-105(2) by he or his firm performing legal services for the client as its attorney of record, i.e., its corporate counsel.

Also, the requestor is advised that should he be involved in any way in the solicitation and/or receipt of the state grant for the client, then additional conflict of interest law violations would occur.  Specifically, Code Section 25-4-105(1) and (3)(d), cited above, prohibit a legislator’s involvement in the solicitation and/or receipt of state funding for a client.

Code Section 25-4-105(1) prohibits the requestor from using his official position as a legislator to obtain a pecuniary benefit for himself or a business with which he is associated.  The legislator/attorney and/or his law firm’s receipt of $1,000 or more in fees annually from the client, makes the client’s company a “business in which [the legislator] is associated.”  This definition is set forth in the above cited Code Section 25-4-103(d).

 
Code Section 25-4-105(3)(d) prohibits the requestor from being compensated by the client for attempting to influence the legislative process related to the client’s receipt of state funding.

The requestor must properly recuse himself from such involvement in the solicitation and/or receipt of state funding for a client to avoid violating Code Section 25-4-105(1) and (3)(d).

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 [in this case other legislators], 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.

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 legislator’s vote, the authorization by the Legislature nonetheless results in a contract in which the legislator has a prohibited interest. [Emphasis added]

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 legislator being the attorney of record for a business receiving a state grant has the potential of creating suspicion among the public and reflecting unfavorably upon the state.  Therefore, such circumstances should be avoided when possible.  In addition, Code Section 25-4-101 is another reason why the legislator  must totally and completely recuse himself from all discussions, actions and decisions of the Legislature concerning the business if the circumstance is not avoided and if it is determined that said legal services provided the business are not prohibited by Constitutional Section 109 and Code Section 25-4-105(2).

 
ISSUE 2: As stated above in ISSUE 1, Code Section 25-4-101 is 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 and therefore 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.

It is clear that the state’s public policy of public service being a public trust is clearly expressed in Code Section 25-4-101.  A legislator or his law firm providing legal services to a client on a matter related to funds approved by the Legislature, especially in an action brought under the Public Records Act, must be balanced against this statutorily declared public policy of public trust.

Based on the above, the Commission opines that a legislator or his law firm representing a client in an action brought under the State’s Public Records Act to prevent the release of grant information to the public, especially when the grant funding was appropriated by the Legislature, is certainly a circumstance that will appear suspicious to the public and cause the State and the Legislature to appear in an unfavorable light to the public.

Therefore, the requestor nor his law firm should represent the business in question in the action brought under the State’s Public Records Act related to a grant whose funding was appropriated by the Legislature, as to do so would be contrary to the public policy mandate set forth in Code Section 25-4-101.
 
 
 

Scott Rankin
Executive Director