This Advisory Opinion concerns the following issue as formulated from facts and/ or circumstances furnished by a requestor. The Commission approved this opinion on April 4, 2003, basing its approval solely on the facts and circumstances stated herein.
 

May the mother of a state board's executive director assist the state agency in an investigation on a pro bono basis, when the mother has a specific medical condition conducive to helping conduct an investigation for possible professional misconduct by individuals regulated by the agency the child directs?

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( e), (g)( v), (h), (i), (l), (o), (p)( i)( ii)( iii) and (q) states:
 

"( e) 'Compensation' mean money or thing of value received, or to be received, from any person for services rendered.

(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, h e a d, 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) 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."

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

In its effort to protect the public, the State Board (hereinafter referred to as "the Board") has unsuccessfully attempted for a number of years to conduct investigations into one segment of a professional community. The investigations are not only a high priority with the Board, but also are supported by the professional community and the State Board. Because of the unique aspects of the cases, the best method to conduct the investigations is to utilize the services of individuals having a particular condition who go into an office seeking advice and care. It has been extremely difficult finding individuals with the proper condition to serve in this very important, yet limited, capacity.

The Board's Executive Director, has a mother who fulfills the Board's unique patient requirements for this limited investigative role. Her mother spoke with you by telephone recently concerning this matter. The Board would like to utilize the services of the Executive Director's mother; however, being mindful of Miss. Code Ann. Section 25-4-105 which prohibits any public servant or relative of a public servant from receiving pecuniary benefits, Executive Director's mother has agreed to assist the Board's full-time investigator on a pro bono basis, i. e. the Executive Director's mother will not receive any compensation for her efforts on behalf of the Board. Further, she will not receive any benefit from the care offered or keep any appliance or product. In other words, neither the Executive Director nor her mother will obtain any pecuniary benefit. The Board itself, and correspondingly, the general public it protects, will benefit from the pro bono services provided by the mother.

Based on the above, the Board requests an official opinion from the Commission as to whether the uncompensated services of the Executive Director's mother can be utilized.

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

The conflict of interest laws do not as such prohibit the mother of a state board executive director from assisting the state agency in an investigation on a pro bono basis, when the mother has a specific medical condition conducive to helping conduct an investigation for possible professional misconduct by individuals regulated by the state agency the child directs. The Commission's opinion is based on the executive director's mother providing these services pro bono, thereby not receiving a pecuniary benefit from the agency her child serves as executive director.

Code Section 25-4-105( 1), cited above, prohibits public servants, including a state agency executive director, from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business with which they are associated.

In relation to the conflict of interest laws, a relative is defined by the above cited Code Section 25-4-103( q) as a "spouse, child or parent." As the executive director's mother, she would be covered by the Code Section 25-4-105( 1) prohibition.

In addition, in order for the public servant to avoid using his or her official position to provide a pecuniary benefit for his or her mother, the public servant must totally and completely recuse himself or herself from subject matters providing the pecuniary interests. As executive director, he or she would be unable to recuse himself or herself from all matters related to his or her
mother's involvement with the state agency and continue to effectively perform his or her public role as executive director of the state agency.

Therefore, the final determination of a Section 25-4-105( 1) prohibition is whether the executive director's mother receives a pecuniary benefit from her service to the state agency. Pecuniary benefit is defined above in the above cited Code Section 25-4-103( l) as a "benefit in the form of money, property, commercial interest or anything else the primary significance of which
is economic gain." If the executive director's mother performs the services pro bono, and thus receives none of the previously mentioned pecuniary benefits, no Code Section 25-4-105( 1) violation will occur. However, should the executive director's mother receive any pecuniary benefits based on her services to the state agency, a violation of Section 25-4-105( 1) would result.

Notwithstanding the above, the requestor is advised related to the State's public policy mandate set forth in Code Section 25-4-101, cited above.

Code Section 25-4-101 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 state agency executive director's mother performing services for the state agency can be expected to create suspicion among the public and reflect unfavorably upon the public servant's governmental entity. The public servant should never place himself or herself, or be placed by his or her governmental entity, in a situation where a private interest related to his or her
mother is competing or appears to be competing with his or her public interest. Therefore, the Commission recommends the executive director avoid any specific situations during his or her mother's service to the state agency which would create undue concern among the public so as to fully and completely comply with the public policy mandate set forth in Code Section 25-4-101.
 

Scott Rankin Executive Director