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 a state commission approve payments to an architect for a project associated with a grant approved by the commission prior to the appointment of the architect's spouse to the board of directors of the commission?

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 25-4-103( c), (d), (e), (f)( i)( ii), (g)( v), (h), (l), (p)( i)( ii)( iii) and (q) states:
 

"( 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, 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) 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 requesting a written ruling for our files regarding conflict of interest.

On October 2001 a state commission's board of directors approved a grant to a City to renovate and restore a building for use as a community center.

The architect cited in the grant, his total fees for the project is for $X. XX, 60% of this fee would be paid out of the state commission's grant.

In August 2002, the architect's spouse was appointed to our board of directors.

The architect's spouse officially joined our board of directors at the September 2002 quarterly meeting, almost one year after the state agency funds has been awarded to the City.

The architect's spouse was not part of the appropriation or approval of this grant, as she was not on the board at the time of its award.

As the state commission anticipates making payment on this grant in the near future, a portion of which will compensate the architect for his services, we are requesting confirmation that this is not a conflict of interest.

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

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

In Frazier v. State, 504 So. 2d 675, (Miss. 1987), the Mississippi Supreme Court set forth the following four elements necessary to apply the Constitutional Section 109 prohibition, and thereby the Code Section 25-4-105( 2) prohibition:
 

1. Is there a governmental contract with the state, county, municipality or district?
2. Does the public officer have an interest, direct or indirect, in the contract?
3. Is the contract authorized by a law passed or order made by a board or public body of which the public officer is a member?
4. Was the authorizing law or order passed during the public officer's term or within one year after the expiration (or termination) of such term?

The requestor's facts clearly reveal that the commission's board, of which the architect's spouse is a member, authorized a contract with the architect when it approved the grant from which the architect would receive payment, satisfying elements 1 and 3.

Next regarding element 2, in Smith v. Dorsey, 530 So. 2d 5 (1988), the Mississippi Supreme Court held a public official has an indirect prohibited interest in a contract in which the public official's spouse has a direct interest for purposes of Constitutional Section 109 and Code Section 25-4-105( 2). The architect's spouse clearly has a direct personal pecuniary interest in the architect's contract with the commission resulting in the architect having an indirect interest for purposes of Constitutional Section 109 and Code Section 25-4-105( 2).

However, approval of the contract by the commission with the architect must occur during the architect's spouse's term as a commission board member or one year thereafter, to satisfy the remaining element 4. Based on the requestor's supplied information, clearly the architect's spouse was not a member of the board when the contract was authorized with the architect, as the contract was authorized in October 2001 and the architect's spouse was appointed to the commission in August 2002.

Therefore, Constitutional Section 109 and Code Section 25-4-105( 2) will not prohibit the commission from approving payments to an architect for a project associated with a grant approved by the commission prior to the appointment of the architect's spouse to the board of directors of the commission. [Emphasis added to bold text]

Notwithstanding the above, the commission board member must remain keenly aware of the above cited Code Section 25-4-105( 1).

Code Section 25-4-105( 1) prohibits public servants, including a commission board member, from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business with which they are associated.

To avoid using their official position to obtain a pecuniary benefit, public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests.

In this instance, any issues, especially payment approvals, related to the grant from which payments will be made to the commission member's spouse as the project's architect are such subject matters requiring recusal.

An abstention is a vote with the majority of the governmental 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 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 governmental entity's board should state the public servant left the meeting by showing him or her absent for that matter.

In short, the requestor is cautioned to advise the board member that the only way the board member can be certain to avoid violating Code Section 25-4-105( 1) is to recuse herself from all matters coming before the commission concerning the grant in which her spouse has an interest.
 

Scott Rankin Executive Director