This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on  May 6, 2005, basing its approval solely on the facts and circumstances stated herein.
 

May a legislator have an interest in a contract with a county for inmate telephone services?

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(f)(i)(ii), (g)(i)(ii)(iii)(iv)(v) and (p)(i)(ii)(iii) states:
 

(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.

(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;

(iii) All school districts;

(iv) All courts; 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.

(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.

(q) ‘Relative’ means the spouse, child or parent.

Code Section 25-4-105(1) and (2) state:
 

(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 a state legislator and I would like to know if I can do business with county jails regarding telephone services.

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

The Commission’s staff has discussed this matter with the requestor by telephone. The telephone services to which the requestor refers are inmate telephone services. Typically, the telephone service provider executes a contract with the owner of a correctional facility whereby the service provider pays a fee to the facility owner in exchange for the right to place specially programmed pay telephones in the correctional facility. The facility may be a county jail, a regional correctional facility or a county facility managed by a private organization. The pay telephones are then used by inmates, and the service provider receives revenue from the inmates or collect call recipients. The arrangement is analogous to that of a vending machine. No public money is expended in connection with these services. On the contrary, the governmental owner of the correctional facility often realizes substantial income from the telephone service provider.

Section 109, Miss. Const. of 1890, and its statutory parallel, Section 25-4-105(2), Miss. Code of 1972, both quoted above, prohibit a member of the Legislature from having an interest in a contract authorized by the Legislature during his or her term or for one year thereafter. Frazier v. State, ex rel. Pittman, 504 So.2d 675, 693 (Miss. 1987). In this context “authorized” means more than just the obvious act of approving a contract. It also means appropriating money. An appropriation of public money which funds a contract is an action which authorizes that contract.  Id., citing Cassibry v. State, 404 So. 2d 1360, 1366-67 (Miss. 1981). Here the requestor would have a direct interest in the contract to provide inmate telephone services to the correctional facility, but that contract would not be authorized in any way by the Legislature. No legislative authority is necessary before the county/regional facilities or their private lessee may enter into these service contracts, and the contracts are not funded by any legislative appropriation. Therefore, the requestor will not violate Section 109 or Section 25-4-105(2) if he has an interest in a contract for inmate telephone services such as those described above.

Even if the county/regional facilities or their private lessees have contracts with the Department of Corrections to house state inmates, the above finding still applies, based on the following reasons. The telephone service contracts are not being funded with a “direct line of appropriation.” Jones v. Howell, 827 So. 2d at 700 (Miss. 2002), referencing to Frazier v. State, 504 So. 2d 675 (Miss. 1987). The requestor’s interest in the Department of Correction appropriations is so remote as to remove them from the purpose of Constitutional Section 109 and Code Section 25-4-105(2) as no decision the requestor makes in voting on a Department of Correction’s appropriation bill affects whether a correctional facility will chose to contract with his telephone inmate service company. Jones, 827 So. 2d at 699. The requestor’s company will not be paid with profits from the Department of Correction inmate housing contracts as there is no payment from public funds. Jones at 700, citing Cassibry v. State, 404 So. 2d 1360 (Miss. 1981).  The attached Advisory Opinion No. 98-024-E is hereby modified to conform herewith.

Naturally, any public servant would be prohibited from using his or her position in government to secure such a governmental contract, as that conduct could violate Section 25-4-105(1), Miss. Code of 1972, quoted above. The requestor should be careful to avoid any connection between his or her legislative office and the proposed county contracts.
 

Scott Rankin
Executive Director