This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 5, 2003, basing its approval solely on the facts and circumstances stated herein.
 

May a former city council member accept an appointment as a county emergency communications commission’s director when agreements where entered into between the city and the county concerning county emergency communications commission requirements?

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)(i), (g)(i)(ii)(v), (h), (l), (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) ‘Government’ means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties;

(ii) Municipalities; 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.

(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, absent identifying data, are set forth as follows and considered a part of this opinion.
 

On November 1, 2002, the Mississippi Ethics Commission issued Official Advisory Opinion No. 02-104-E addressing the following question:
 

May a city council member for a municipality located within a county also serve as the executive director to the county Emergency Communications Commission?

The facts and circumstances presented by me on behalf of the requestor, the County Emergency Communications Commission (CECC) indicated that the City Council member involved wanted to simultaneously serve as a City Council member and as the Director to the CECC.  Therefore, the CECC would like a second opinion based on this change in circumstances.
 
In addition, the opinion should also address and/or consider the existing relationship between the City and the CECC.  Effective July 1, 2003, the Board of Supervisors reorganized the CECC. The Commission is now made up of seven (7) members and each City within the County nominate one individual to serve as a Commissioner.  All nominees of the Cities are considered by the Board of Supervisors, who retain exclusive authority to appoint or reject the nominees.

The Municipalities in the County have not provided any funding to the CECC.  All funds utilized by the CECC are generated by the County pursuant to Miss Code Ann. or are from loan proceeds provided by the County Board of Supervisors.

There is an agreement between the City and the County for the purchase of certain infrastructure equipment by the County from the City.  The funds used to make the purchase were generated through the County levy imposed by Miss. Code Ann. Or through loans obtained by the County which will be repaid from funds generated by Miss. Code Ann.  This Agreement has been concluded.  There is also an Interlocal Cooperation Agreement which was recently entered into between the City and the County Board of Supervisors.  This Agreement calls for the two entities to share the costs of purchasing end user equipment needed by the City for the county-wide public safety communications system.  The City had previously purchased this equipment and the County agreed to reimburse the City seventy percent (70%) of the original cost.  The funds utilized by the County to reimburse these costs were generated by Miss. Code Ann. Or from loan proceeds.

Although the agreements were formally entered into between the City and County, the CECC did approve same.  It should be noted that all other Cities in the County entered into similar Interlocal Cooperative Agreements for sharing the costs of their respective end user equipment with the County.

Based on these facts, the CECC requests an opinion on whether Code Sections 25-4-10 through 25-4-119, 1972 Miss. Code Ann. And Article IV, Section109, Mississippi Constitution of 1890, would be violated if the City Councilman involved resigned his position on the city Council and immediately accepted the position of Executive Director to the CECC.

The Commission formally adopts Advisory Opinion No. 02-104-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.

Constitutional Section 109 and Code Section 25-4-105(2), both cited above,  prohibit a public board member, such as the city council member in question, from having an interest, direct or indirect, in any contract, such as the two agreements identified by the requestor, authorized by the board of which he is a member during his term and for one year thereafter.

The city council member’s resignation from the city council due to the Separation of Powers Doctrine, Article 1, Section 2, Constitution of 1890, does not avoid the Constitutional Section 109 and Code Section 25-4-105(2) issue. That issue being whether the [former] city council member will have a prohibited interest in either of the two agreements between the city and the county pertaining to county emergency communications commission (CECC) equipment requirements if he is appointed as the CECC’s director.

In regard to the first agreement, the requestor provides the following description, “There is an agreement between the City and the County for the purchase of certain infrastructure equipment by the County from the City. The funds used to make the purchase were generated through the County levy imposed by [state statute] or through loans obtained by the County which will be repaid from funds generated by [the statutory authorized levy]. This Agreement has been concluded.” [Emphasis added to bold text]

As the first agreement has expired, any prohibited interest the [former] city council member would have had due to the existence of the agreement has been removed.  Notwithstanding the expiration of this first agreement, the fact that the funding was flowing from the county to the city to pay for the equipment, albeit, for the use of the CECC, makes it unlikely that it could be argued that such an agreement would have authorized the city council member’s employment by the CECC or caused the city council member to have a prohibited interest in the expired agreement as the CECC’s director.

Regarding the second agreement, the requestor provides the following information, “There is also an Interlocal Cooperation Agreement which was recently entered into between the City and the County Board of Supervisors.  This Agreement calls for the two entities to share the costs of purchasing end user equipment needed by the City for the county-wide public safety communications system.  The City has previously purchased this equipment and the County agreed to reimburse the City seventy percent (70%) of the original costs.  The funds utilized by the County to reimburse these costs were generated by [the statutory authorized levy] or from loan proceeds.”¹

 
This Commission is ever mindful that Constitutional Section 109, and thereby, Code Section 25-4-105(2), serve the policy of protecting the public interest by “preventing graft of every possible sort, and secure[ing] the honest and clean administration of [governmental] affairs.”

However, this Commission is also aware that the Mississippi Supreme Court has directed that Constitutional Section 109 must not be interpreted too expansively, without regard to common sense, considering modern, current circumstances and conditions. The Court has said it will not require that which is “thoroughly impracticable.”²

Therefore, the remaining question is whether the [former] city council member’s interest in the current interlocal agreement as the CECC’s director will be so remote as to remove it from the purpose of Constitutional Section 109 and Code Section 25-4-105(2).

Considering that the current interlocal agreement is between the city and the county, albeit involving necessary city equipment to allow compatibility with CECC equipment, and the county funding is flowing to the city for the limited purpose of obtaining the necessary city equipment, it is this Commission’s position, in this particular instance, that the [former] city council member’s interest in the current interlocal agreement between the city and the county by way of his employment as the CECC’s director is outside the “edge of the target” necessary for violating Constitutional Section 109 and Code Section 25-4-105(2).³

Code Section 25-4-105(1), cited above, provides that a public servant, such as the city council member, may not use his official position to obtain a pecuniary benefit for himself, other than his compensation provided for by law, a relative or a business with which he is associated.

In regard to Code Section 25-4-105(1), the question of whether the city council member has used his official position in seeking the CECC’s director’s job is one that will require a factual determination and as such is not a question that can be answered by this official advisory opinion.

 
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 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 requestor is cautioned to advise the city council member that this Commission finds that the city council member should recuse himself from any matter before the city council that concerns the CECC and the current interlocal agreement between the city and the county for as long as he remains a member of the city council and continues to seek the CECC’s director’s position so as to avoid a future violation of Code Section 25-4-105(1) and to comply with the public policy set forth in Code Section 25-4-101.

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 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 governing entity’s board should state the public servant left the meeting by showing him or her absent for that matter.

In regard to any potential future interlocal agreements in which the council member would be determined to have a prohibited interest, the requestor is cautioned to advise the city council member that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2). Even without a board member’s vote, the authorization by the member’s board, nonetheless, results in a contract in which the board member has a prohibited interest.
 
 

Scott Rankin
Executive Director
 

¹ Noxubee County Hardware Co. v. City of Macon, 90 Miss. 636, 43 So. 304, 305 (1907).

² Frazier v. State ex rel. Pittman, 504 So. 2d 675, 695 (Miss. 1987).

³ Frazier, 504 So.2d 695 (citing Cassibry v. State, 404 So.2d 1368).