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 6, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May a law firm which represents a board of supervisors lease office space to the district attorney when the county provides supplemental funding to the office of the district attorney?

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 25-4-103(a), (g)(i)(v), (h), (k)(i)(ii), (l) and (p)(i)(ii)(iii) states:
 

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

(g) ‘Governmental’ means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties;

(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.

(k) ‘Material financial interest’ means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other.  Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i)  Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).

(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,  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 (3)(a) 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.

(3) No public servant shall:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the  governmental entity of which he is a member, officer, employee or agent.”

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

Please be advised that we represent the Board of Supervisors.  In connection with this, we are writing to request an official opinion with regard to an issue that has arisen.

Myself, along with two of my partners, have an interest in a limited liability company that owns certain real property in the County.  The property is located close to the Courthouse and the District Attorney for this Circuit desires to lease part of it for office space.  The Board of Supervisors appropriates supplemental funds to the District Attorney for the operation of his office.  Please advise as to whether the limited liability company leasing of office space to the DA is legal given that there is common ownership in the limited liability company as with the law firm that represents that Board of Supervisors and as the Board of Supervisors provides supplemental funding to the District Attorney.

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

Attorneys for boards of supervisors (hereinafter, “board attorneys”) are “public servants”, as defined in Section 25-4-103(p), Miss. Code Ann. 1972, quoted above, and are subject to the Ethics in Government laws. Section 25-4-105(3)(a), Miss. Code Ann. 1972, quoted above,  prohibits a public servant or any business in which he holds a material financial interest from being a contractor, subcontractor or vendor with the same governmental entity in which that public servant works. “Material financial interest” is variously defined in Section 25-4-103(k), Miss. Code Ann. 1972, quoted above, but if the requestor receives more than $5,000.00 in aggregate annual net income from the limited liability partnership, then he definitely has a material financial interest in that firm. That interest will prohibit the firm from being a  contractor, subcontractor or vendor with the county, other than its contract to provide legal representation. A lessor is a contractor for purposes of the ethics laws. See Moore ex rel. City of Aberdeen v. Byars, 757 So.2d 243, 247-248 (Miss. 2000).

The governmental entity served by board attorneys is, of course, the county, and the authority of county government in which board attorneys serve is the board of supervisors. The office of the district attorney is part of state government, a separate governmental entity. The county’s provision of supplemental funding to the district attorney does not change that distinction.

Therefore, the Ethics in Government laws do not prohibit the law firm in question from leasing office space to the district attorney while representing the board of supervisors, even though the county provides supplemental funding to the district attorney’s office. The basis of this finding is that this is a contractor relationship between the law firm and the district attorney. The law firm’s partner is a public servant of the county, whereas the district attorney is a public servant of the state, which are two separate governmental entities for purposes of the ethics in government laws. However, the board attorneys must totally and completely recuse themselves from any action by the board to provide funding to the district attorney’s office.

Recusal by the attorneys is necessary to avoid a violation of Section 25-4-105(1), Miss. Code Ann. 1972, cited above. Even the board attorneys’ tangential involvement in appropriations by the board to the district attorney’s office would constitute action in their official position as board attorneys which might ultimately result in a pecuniary benefit to them.

A total and complete recusal requires that the public servant not only avoid discussing the subject matter during official meetings or deliberations, but also avoid discussing the subject matter with staff or any other person. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.
 
 

Scott Rankin
Executive Director