This Advisory Opinion concerns the following issue 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.
 

May a state agency deputy administrator also serve on a housing authority board when the housing authority requests a grant from the division of the state agency that the deputy administrator has supervisory responsibility?

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:

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), (g)(v), (h) 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.

(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.

(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(5) states:
 

“(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.
 

I am currently employed by a State Agency as a Deputy Administrator.  In my official capacity, I am responsible for the operation of all programs and grants that are administered by the agency.

One of the programs under my direct supervision, has issued a Request for Proposal for programmatic services to be provided by community based organizations.  I currently serve as the chairperson for a Housing Authority Board of Commissioners.  The Housing Authority is interested in submitting a proposal and receiving a grant.  My concern is whether or not my position with the Agency will prevent the Housing Authority from receiving funding to operate a program.

I will recuse myself from any involvement in the writing of the proposal and also the operation of the program if they are awarded a grant.  I will recuse myself from any involvement with their proposal after it has reached the State Agency.  I am not   involved in the review or scoring of proposals nor am I responsible for the awarding of the grant.

The Commission formally adopts Advisory Opinion No. 97-051-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.

The issue presented by the requestor 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.

The courts of this state have not specifically addressed the “Declaration of Public Policy,” set forth in Code Section 25-4-101, as prohibiting a specific situation.  However, the courts have addressed public policy issues in other areas where certain situations were prohibited.

 
The courts have said very clearly that the public policy of this state is “found in its constitution and statutes.”    In insurance cases involving indemnity clauses, the courts have said that contracts may be invalid because they violate public policy.

In addition, the Mississippi Supreme Court has addressed certain instances where public servants are limited in their actions by public policy.   In Board of Trustees v. Mississippi Publishers Corp., 478 So. 2d 269 (Miss. 1985), the Court ruled that the Institution of Higher Learning (IHL), regardless of the reasons benefitting IHL, could not ignore the clearly established public policy set out in the Open Meetings Law.   Also, the Court ruled in Friedhof v. City of Biloxi, 232 Miss. 20 (1957), that city council members may not vote on matters directly concerning their personal interests as it is against public policy.

The state’s public policy of public service being a public trust is clearly expressed in Code Section 25-4-101.  The deputy administrator’s service on the housing authority’s board must be balanced against this clear statutorily declared public policy of public trust.

The deputy administrator’s public employment position with the state agency provides her the authority and responsibility to protect the public’s interest through the state agency’s oversight of the grant program.  The deputy administrator’s alternative public role, as housing authority board member, obligates and mandates  her to promote  the housing authority above all else involving allotting the grant approved by a division of the state agency the deputy administrator has responsibility for supervising.  Once the housing authority requests a grant from the state agency, the deputy administrator can not recuse herself from her supervisory responsibilities concerning the housing authority’s grant request without impeding her state agency public duty, conversely, the requestor’s failure to recuse creates concerns among other grant requesters that potential favoritism exists concerning the deputy administrator’s association with the housing authority.

Based on the above, the Commission opines that the state’s public policy of public service being a public trust forbids the state agency’s deputy administrator from serving in her dual public positions when one position supervises the approval, issuance and regulation of a grant received by another governmental entity she serves as a board member.

 
Therefore, the requestor is advised to not serve in both capacities, i.e. state agency deputy administrator and housing authority board member, if the housing authority requests a grant from a division of the state agency the deputy administrator supervises, as to do so would be contrary to the public policy mandate set forth in Code Section 25-4-101.

Additionally, the requestor is cautioned concerning Code Section 25-4-105(5), cited above, which prohibits a deputy administrator from using or disclosing non-public information gained through her job that could result in a pecuniary benefit to herself, 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. [Emphasis added in bold]

Code Section 25-4-105(1), discussed in the attached opinion, is not at issue herein as a housing authority is a public body corporate and politic, and therefore not within the meaning of “business” as defined in the above cited Code Section 25-4-103(c).
 
 
 
 
 

Scott Rankin
Executive Director