This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 11, 2003, basing its approval solely on the facts and circumstances stated herein.
 

May a water management district cooperate with the U. S. Army Corps of Engineers on an environmental project when the direct physical work to be done will be to the property of a county supervisor whose county in a member of the district and which funds the district by way of a mandatory levy?

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(f)(i)(ii), (g)(i)(v), (h), (l), (n), (o) and (p)(i)(ii)(iii) states:
 

“(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:

(i) Counties; and
 
(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.

(n) ‘Property’ means all real or personal property.

(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.”

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 and all supplemental facts provided on behalf of the requestor, absent identifying data, are set forth as follows and considered a part of this opinion. The Attorney General’s opinion referenced in the following facts and in the advisory opinion is not set forth herein as it contains identifying data.
 

I am the attorney for a Water Management District, (District) a locally funded state agency, consisting of several member counties in Mississippi.

A certain County is a member of the District pursuant to applicable statutes.  One of the main purposes and missions of the District is to serve as a local sponsor for water related projects to be performed by and/or funded, in whole or in part, by the U.S. Army Corps of Engineers.

 
The U. S. Army Corps of Engineers in cooperation with the District has made the determination that an area of a creek in the County needs an Improvement to the Environment Section 1135 Project (hereinafter Section 1135 Project).  This type of project is authorized by Section 1135 of the 1986 Water Resources Development Act, being a federal statute.  The purpose of this federal statute is to authorize the U.S. Army Corps of Engineers to restore a “degraded ecosystem” and thereby improve and reconstitute a natural environment for habitat restoration in stream and river channels.

The Corps of Engineers will be handling the letting of a contract for the work to be performed, and the District will not be involved in this process.

In other words, the sole purpose of this Section 1135 Project is environmental improvement of natural habitat for the benefit of the general public.  The purpose of this environmental project is to improve the natural habitat by “training” the flow of water thereby reducing the amount of stream “turbulence.”  In the direct project location as well as for miles below, including tributaries of the River, and for miles above, the Creek 1 stream channel as well as lower Creek 2 and Creek 3 presently tend to have uniform, even stream beds due to the present flow of water and the even distribution of sand and silt.

After the project is completed and after the restoration of more natural flow of water, the stream channel bottom will develop shallow pockets, holes or indentations conducive to living natural habitat.  The restoration of this natural habitat and environmental improvement will benefit the general public for miles both above and below this specific several foot stretch of Creek 1.  In other words, all of Creek 1 and where Creek 1 flows into Creek 2 which then flows into Creek 3 that drains into the River will all benefit from this particular Section 1135 Project.

This specific area of Creek 1 in which the direct physical work will be done is a stretch of Creek 1 approximately several feet in length.  One land owner owns all of the land on one side of this stretch of Creek 1.  There are two land owners on the opposite side of the stretch of Creek 1, and of these two landowners, one is a member of a County Board of Supervisors.

Attached is a resolution from the County Board of Supervisors concerning this Section 1135 Project wherein the board member totally recused himself from deliberations and from voting, and in fact, the board member even left the room all as shown in the attached minutes.

 
However, as was mentioned to you on the telephone, the adoption of this resolution by the County was not a legal prerequisite to the performance of this Section 1135 Project.  As was explained, this action by the Board of Supervisors was more of a communications and public relations tool of the District to let our member counties know of what the District is doing in that particular county.  In other words, from a contract and legal standpoint, the only necessary legal prerequisites that are needed to perform this Section 1135 Project are a vote by the board of the District and the approval of the U.S. Army Corps of Engineers.

In general terms, this Section 1135 Project will involve the placement of rip-rap and other materials on both banks of this stretch of Creek 1, so there would be approximately several feet of bank work involved.  Of the total feet of bank work involved and since the board member is one of the two landowners on one side, it is estimated that about 25%, more or less, of the bank work would be on his property.

Also, permanent easements will have to be granted by the landowners to allow the performance of this environmental project and to allow future access for environmental purposes of the project.  The landowners will donate the easements for the public purposes of the Section 1135 Project, and none of the property owners will be paid any monies for these permanent environmental easements.

As we mentioned above, the District has several member counties, and attached hereto is a listing of District received from each of these counties for the Fiscal Year 2003 ending on June 20, 2003.

Of the total sum of $1,394,699.16 that the District received in ad valorem taxes from the member counties for the Fiscal Year 2003, the County contributed the sum of $81,159.90.  The District receives approximately 5.8% of its ad valorem taxes revenue from the County.

The total cost of this project is the approximate sum of $928,000.00 of which the District has been requested to contribute the cash sum of $52,000.00 and to agree to certain maintenance of the project in future years.  The District’s $52,000.00 contribution would come from the District’s general fund being the funds contributed by all member counties.

Therefore, of the District’s cash contribution from its general fund, 5.8% of this $52,000.00 contribution or $3,016.00, would be derived from ad valorem tax funds that the District received from the County.
 
As stated above, of the total directly affected bank footage along the Section 1135 Project, approximately 25%, more or less, would be along the property owned by the  board member.

Of the County ad valorem tax receipts used to fund the entire project, ($3,016.00), only about 25% of this amount, or approximately $754.00 would be involved in the work to be performed directly along the stream bank of the property owned by the board member.

As to the authority and discretion of a member county to reduce the ad valorem tax contribution to the District, attached is a recent Attorney General’s opinion regarding the minimum ad valorem tax that a member county must levy for the benefit of the District, and this minimum is mandated by the applicable statutes.  As the Attorney General’s opinion states, there are separate authorities for taxation and millage if there is outstanding bonded indebtedness.

As to the discretion of a county to withdraw from membership in the District, the Attorney General’s opinion states that a county can not withdraw as long as the District has certain continuing obligations as set forth in the opinion and the referenced statute.  The District would point out that it has numerous projects for which it has continuing obligations as those described in the statute.

In view of the sole purpose of this project as being the enhancement of the stream and channel habitat and improvement to the environment, in view of the benefit to all members of the general public for literally miles up-stream and down-stream, since the direct amount of the District’s contribution on the affected property is X dollars, since this nominal benefit to the affected property is only a coincidence or a by-product and not the purpose of the project, since no action is required by the County Board of Supervisors, since the board member is not even a member of the District’s board, since the project’s purpose is that set forth in federal law, since the contracting party will be the U.S. Army Corps of Engineers and not the District, the District does not believe there is any conflict of interest involved.  However, the board member is a member of the Board of Supervisors and the board member owns the aforesaid land, we believed that it would be appropriate to advise your office of these circumstances and to request an opinion.

SUPPLEMENTAL FACTS PROVIDED BY THE EXECUTIVE DIRECTOR OF THE WATER MANAGEMENT DISTRICT ARE AS FOLLOWS:

Following our conference call, we have researched the files and procedures of the District to ascertain if any official action, any type approval or request, or a resolution from a subject county is necessary before the Corps of Engineers projects can be performed in that county.

I find that on several years ago, the District passed a resolution to sponsor the River and tributary projects in Mississippi for flood control, which were Corp of Engineers authorized projects.  These projects are located in several counties.  Projects included in this District resolution have been completed in several of the counties without any official action, without any approval or request, and without a resolution from the affected counties.

The District also sponsored a project in two counties, which was a Corps of Engineers authorized project.  These projects were completed without any official action, without any approval or request, and without a resolution from the affected counties.

The District also, several years ago, passed a resolution to sponsor a project in Mississippi.  The project authorized by Congress to be constructed by the U.S. Army Corps of Engineers.  The District was to act as local sponsor.  The project traverses several counties.  This project was completed, and without a resolution from the affected counties.

All of the above projects are those whereby the District sponsors authorized projects to be performed by the Corps of Engineers (hereinafter “Corps of Engineers Projects”).  On these Corps of Engineers Projects, the District, among other things, provides matching funds, acquires the easements, and examines the validity of the land rights such as having an attorney certify title, etc.

The subject Section 1135 Project on a creek in a county is one of these Corps of Engineers Projects, and the District’s matching funds is the sum of $52,000.00.  The District is also required to obtain the easements and to certify title, however, with only three landowners, this would not be a large cost especially since the landowners will be donating the easements.

I cannot find any authority or procedure in the District’s By-Laws, past resolutions or orders, or any applicable law which requires an official action, approval or request, or a resolution from the affected counties for the District to sponsor any Corps of Engineers Projects such as that involving this Section 1125 Project on a county creek.
 
Another type of project that the District sponsors with a federal agency is an Emergency Watershed Project (hereinafter “EWP Project”) with the Natural Resource Conservation Service (“NRCS”), a federal agency.  On these EWP Projects, the District does provide cost sharing in the form of in-kind services in its agreement with NRCS, but the NRCS provides or makes arrangements for the land rights and easements.  Also, on an EWP Project, the District does require a resolution or approval by the affected county.

The differences on a Corps of Engineers Project, not requiring any action by the local affected county, and on an EWP Project, requiring action by the local affected county, are the EWP projects that are confined in its entirety in one county and are treated as Small Projects since the cost share is in-kind services, i.e., man power and equipment.

The only other projects that I can find that require an official action, approval or request, or a resolution from the affected counties are first of all, “Projects of a Local Nature,” and secondly “Small Projects.”  On these Projects of a Local Nature and Small Projects, the affected county must obtain the easements and furnish satisfactory evidence of valid title to perform the projects.  These are procedures that the District has adopted in its minutes and/or has customarily followed.

The source of the funding for the Projects of a Local Nature is always funds of that particular county in reserve with the District for expenditure only in that county.  The source of the funding of the Small Projects could involve funding by either District wide funds or funds of that particular county in reserve with the District for expenditure only in that county or of a mixture of these funds.

The Projects of a Local Nature and the Small Projects costing $10,000.00 or less can be approved by the Executive Committee of the District, but the Projects of a Local Nature and the Small Projects costing more than $10,000.00 require approval by the full board of directors of the District.

In conclusion, the resolution adopted by the County Board of Supervisors is not an action that is required for the District to sponsor this Section 1135 Project on the County Creek.  Furthermore, the Corps of Engineers did not require this resolution.  The resolution of the County Board of Supervisors is not a part of the required contract authorization process since the subject project is one of the above mentioned Corps of Engineers Project(s).

 
I believe that the reason for the County’s adoption of this resolution is that generally speaking, the District prefers to have resolutions from the affected counties, but for the reasons stated above, a Corps of Engineers Project does not require any action by the local county.

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 public board, including a county supervisor, from having an interest, direct or indirect, in any contract authorized by the member’s public board during his term and for one year thereafter.

In Frazier v. State, 504 So. 2d 675, (Miss. 1987), the Mississippi Supreme Court set forth the four elements for applying the prohibition imposed by Constitutional Section 109, as thereby Code Section 25-4-105(2).  The four elements are:

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 indicate that Items 1, 2, and 4, as set forth above, are met in this instance.

First, there are government contracts by way of the easements and the agreement between the governmental entities conducting the project.  Second, the county supervisor will clearly have a personal interest in these contracts as his land will be improved along the bank of the creek during the project. Finally, the orders leading to this project are occurring during the county supervisor’s term of office.¹

 
Therefore, the request at hand involves an interpretation of element 3. In short, the sole question for consideration is whether the county board of supervisors authorized the contracts of which the supervisor in question has an interest by way of his property being improved during the project.

There are two issues to address in interpreting element 3 in this instance. These two issues are the 1) Resolution passed by the board of supervisors and 2) the funding provided to the water management district by the board of supervisors by way of the county tax levy.

First, we will consider the Resolution. As set forth and in reliance on the additional facts provided by the executive director of the water management district as a supplement to the facts provided by the requestor, the Resolution by the county board of supervisors “is not a part of the required contract authorization process since the subject project is one of the above mentioned ‘Corp of Engineers Project(s).’” Based on these additional facts, the county board of supervisors’ Resolution was at best a statement of support and a recommendation of the project and not an authorization of the project.

Therefore, the Resolution is a  noncompulsory action of support and recommendation by the board of supervisors and does not rise to the level of an approval of an order that authorized the governmental contracts related to the environmental project conducted by the U. S. Army Corps of Engineers in cooperation with the water management district. In short, element 3 as set forth in Frazier by the Court as a necessary element for violating Constitutional Section 109, and thereby Code Section 25-4-105(2), is absent in this instance. Based on this finding, the county supervisor will not violate Constitutional Section 109 and Code Section 25-4-105(2) because of his property being a part of the environmental project conducted by the U. S. Army Corps of Engineers in cooperation with the water management district.

Finally, the county tax levy will be considered to determine if the board of supervisors’ funding of the water management district is part of the authorization process for the contracts pertaining to the environmental project being conducted by the U. S. Army Corps of Engineers in cooperation with the water management district.

 
The Mississippi Supreme Court, in Frazier, held that an order of a public official’s board that appropriates funds that directly or indirectly benefit the public official through a governmental contract is part of the contract authorization process. Since the county funds the water management district, the Court’s position in Frazier supports the position that the county board of supervisors providing funding to the water management district is part of the authorization process of the water management district’s contracts, including the contracts in question in which the county supervisor is interested by way of his property being a part of the project. Thereby, leading to the county supervisor violating Constitutional Section 109 and Cod Section 25-4-105(2). Specifically, the Court said, “It therefore follows that a tax levy by a city board or county board of supervisors serves the same function as an appropriation bill by the Legislature.” [See Frazier, at pg. 699.]

Notwithstanding the above, the Court ruled that where there in no discretion in making a levy the above rule changes. Specifically, the Court said, “We cannot envision penalizing a member of a public board for voting affirmatively on a matter in which a court decree or statute gave him no choice but to vote precisely as he did.  In such instance, while his vote may be necessary to put into effect some official process, it is ministerial.  Nor can we envision § 109 penalizing any individual for being on a board faced with such matter.  Any evil envisioned by the authors of § 109 would have to come from a board member voting on a matter in which he had discretion to vote yes or no.” [See Frazier, at pg. 701.] [Emphasis added to bold text]

The Attorney General’s opinion provided by the requestor clearly indicates that the annual levy that the member counties of the water management district are mandatory and that the counties have no discretion to discontinue or change the levies. Quoting the Attorney General’s opinion, “Stated otherwise, a member county must levy millage in a sufficient amount to produce the same amount of dollars for the [water management district] that the district received from the county based on the county’s property tax millage rates set immediately prior to [the control date], and this amount must be paid to the district every year.”

Therefore, it is the Commission’s opinion, based on the Court’s ruling in Frazier and the above referenced Attorney General’s opinion, that the county’s funding of the water management district is not discretionary, and as such, the county supervisor will not violate Constitutional Section 109 and Code Section 25-4-105(2) because of his property being a part of the environmental project conducted by the U. S. Army Corps of Engineers in cooperation with the water management district.
 
Notwithstanding the above findings regarding Constitutional Section 109 and Code Section 25-4-105(2), the county supervisor must remain keenly aware of the above cited Code Section 25-4-105(1) and Code Section 25-4-101.

Code Section 25-4-105(1) prohibits public servants, including county supervisors, 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 positions to obtain a pecuniary benefit, the public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests.  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.

Therefore, the county supervisor is advised that the only way he can be certain to avoid violating Code Section 25-4-105(1) is to recuse himself from all matters coming before the board of supervisors concerning the environmental project of which his property in involved.  It is noted here that the supervisor did recuse himself from the board of supervisors’ vote on the above discussed Resolution.

The issue presented by the requestor also must be viewed as they relate 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 county supervisor’s property being involved in a project such as that described herein, has the potential to create suspicion among the public and reflect unfavorably upon the county. Therefore, Code Section 25-4-101 is another reason why the county supervisor must recuse himself from appearing before the board of supervisors concerning the environmental project of which his property in involved.
 
 

Scott Rankin
Executive Director
 

¹ It is not required that one be a party to the contract in question to have an interest in the contract that violates Section 109. See Cassibry v. State, 404 So. 2d at 1365-67.