ADVISORY OPINION NO. 06-002-E

February 3, 2006

The Mississippi Ethics Commission issued this opinion on the date shown above in accordance with Section 25-4-17(i), Mississippi Code of 1972, as reflected upon its minutes of even date. The Commission is empowered to interpret and opine only upon Article IV, Section 109, Mississippi Constitution of 1890, and Article 3, Chapter 4, Title 25, Mississippi Code of 1972. This opinion does not interpret or offer indemnity from liability for any other laws, rules or regulations. The Commission based this opinion solely on the facts and circumstances provided by the requestor as restated herein. The indemnity provided under Section 25-4-17(i) is limited to the individual who requested this opinion and to the accuracy and completeness of these facts.

I. LAW

The pertinent Ethics in Government Laws to be considered here are as follows, to wit:

Section 25-4-103, Miss. Code of 1972.

...

(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.

...

(i) “Income” means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.

...

(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.

...

Section 25-4-105, Miss. Code of 1972.

(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.

...

II. FACTS

Facts provided by the requestor are set forth below, with identifying information redacted, and are considered a part of this opinion.

I am writing in follow up to my recent phone conversations with your offices. The Mississippi Board of ... is requesting opinions concerning the following:

First a little background information. National Council of ... is an organization whose members are the 50 State Boards of ... and several US Territory Boards of .... [The National Council] develops and administers the ... licensure examination to individuals approved to test by the State or Territory Boards of .... [The National Council] is the only testing organization recognized by all States and Territories at this time. As a member of [the National Council] the [Board] has 2 delegates at each [National Council] house of delegates meeting. The House of Delegates gives the organization general directions which the Board of Directors and [the National Council] staff carries out. A little under 10 years ago some members of [the National Council] formed a licensure compact and a sister organization was created as a result of the compact law – National Licensure Compact Administrators (NLCA). MS is currently a member of the licensure compact and as such the executive director is a member of NLCA. The NLCA “develop(s) uniform rules to facilitate and coordinate implementation of [the] Compact.” (Miss. Code Ann. § 73-15-22 Art. VIII.(c).)

May [the National Council] and/or NLCA pay for travel, food and lodging for [Board] members or staff who are serving on [National Council] or NLCA committees, delegates to the either organizations’ meetings or guests at either organizations meetings?

If so: May [the National Council]/NLCA pay a travel company, airline, shuttle, hotel, eatery etc. directly?

May [the National Council]/NLCA reimburse [Board] members or staff for expenses or should [the Board] reimburse its members or staff and have [the National Council]/NLCA in turn reimburse [the Board] and then deposit the reimbursed funds into the [Board] special fund?

III. ANALYSIS

The travel contemplated in this request constitutes official business of the state agency in question. Reimbursement for travel expenses incurred by an agency employee or board member while on official
business does not constitute a “pecuniary benefit” to the employee or board member as that term is defined
in Section 25-4-103(l), Miss. Code of 1972, quoted above, whether that reimbursement comes from the
agency or from a private entity. Moreover, receipt of such reimbursement for official travel will not
constitute “income” of the employee or board member as defined in Section 25-4-103(i). Therefore, neither the agency nor its employees or board members are prohibited under Section 25-4-105(1) from accepting
reimbursement or pre-payment from the National Council or National Compact for official travel expenses.

MISSISSIPPI ETHICS COMMISSION



BY: Tom Hood, Executive Director and
Chief Counsel