This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 14, 2003, basing its approval solely on the facts and circumstances stated herein.

 
May an individual serve in the Legislature when his spouse works for a planning and development district as a nurse case manager for the Medicaid waiver program?

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(a), (b), (c), (d), (e), (f)(i)(ii), (g)(v), (h), (i), (l), (o), (p)(i)(ii)(iii) and (q) states:
 

“(a) ‘Authority’ means any component unit of a governmental entity.

(b) ‘Benefit’ means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.

(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.

(i) ‘Income’ means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.

(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.

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

Code Section 25-4-105(1) and (2) 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.”

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 writing this letter in regard to my husband’s potential campaign for the House of Representatives.  I am a registered nurse, employed by a Planning and Development District Area on Aging.  I work as a nurse case manager for the Medicaid waiver program.  In that capacity I assess for and coordinate services such as home health, homemaker, and home delivered meals for elderly and disabled clients.  Would this present any conflict of interest?

The Commission formally adopts Advisory Opinions No. 92-203-ER, No. 99-038-E and No. 01-024-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.

The Commission determined in the attached Advisory Opinion No. 92-203-ER that a planning and development district is a “public body” for purposes of the Ethics in Government laws.  Specifically, the Commission found that, “PDD’s are unique and are not clearly defined public entities.  However, the Commission found PDD’s are instruments of government and are thus part of government under [the cited above] Section 25-4-103(g)(v).”

The Mississippi Supreme Court, in Frazier v. State, 504 So. 2d 675 (Miss. 1987), held, a legislator’s spouse, who was also a school teacher, was a member of a large class of several thousand school teachers and concluded that “[Section] 109 was never intended to prohibit any individual from serving in the Legislature and voting on general public school laws simply because his or her spouse is employed as a public school teacher in this state.”
 

After careful consideration of the requestor’s circumstance, the Commission’s finding is that the class of employees of planning and development districts certainly involves an intervening governmental employer and therefore qualifies as “a large class” under  Frazier and is a class more removed from legislative influence than the class of school teachers addressed in Frazier.  This finding is consistent with the attached Advisory Opinions No. 99-038-E and No. 01-024-E.¹

Therefore, the Commission’s opinion is that the employment contract of a legislator’s spouse with a planning and development district as a nurse case manager for the Medicaid waiver program does not violate Constitutional Section 109 and Code Section 25-4-105(2), both cited above.²

Notwithstanding the above, the requestor, if elected to the Legislature,  must remain keenly aware of Code Section 25-4-105(1), cited above, for as long as his spouse remains employed with the planning and development district.

Code Section 25-4-105(1) prohibits a public servant, including a legislator, from using his official position to obtain a pecuniary benefit for himself, a relative and/or any business with which the public servant is associated.

A total and complete recusal is the only way a legislator can be certain to avoid a violation of Code Section 25-4-105(1).

Therefore, a requestor, if elected to the Legislature, is strongly advised to totally and completely recuse himself from any matter coming before the State Legislature during his tenure in the Legislature that in any way concerns the planning and development district employing his spouse.

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 detail discussions, made in person, by telephone or by any other means.

Also in order 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 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 it is 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’s spouse’s employment with a planning and development district  has the potential of creating suspicion among the public and reflecting unfavorably upon the Legislature.  Therefore, this is another reason why a legislator whose spouse is an employee of a planning and development district should totally and completely recuse himself from any matter coming before the State Legislature during his tenure in the Legislature that in any way concerns the planning and development district employing the legislator’s spouse.
 
 

Scott Rankin
Executive Director

¹ Quoting Advisory Opinion No. 99-038-E: In the attached opinion and again today, the Commission concludes that the class of employees of Medicaid service providers not only qualifies as “a large class” under  Frazier but, in fact, is a class more removed from legislative influence than the class of school teachers addressed in Frazier.

Quoting from Advisory Opinion No. 01-024-E: Although a local government employment position may be funded in whole or in part by funds appropriated by the Legislature, the employment of a local government employee by a local government certainly involves an intervening governmental employer making the employment as remote, if not more so, as that of a public school teacher or a state employee.  Therefore, this Commission must conclude that until such time as the State Supreme Court provides additional guidance on this issue the “large class rule” set forth in Frazier for public school teachers and state employees also applies to local government employees.

² See Jones, et al. v. Howell, et al., 1998-CA-01523-SCT, regarding a legislator’s participation in legislation and appropriations concerning the Medicaid program when the legislator receives a benefit or has an interest, direct or indirect, in Medicaid funds.