ADVISORY OPINION NO. 06-020-E

April 14, 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 109, Miss. Const. of 1890.

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.

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

(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.

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.

(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.

II. FACTS

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

Please consider this letter as an official request for an opinion concerning an issue that has been questioned.

Our Mayor is a licensed contractor primarily concerning grading and drainage. The Town area is growing at a very rapid pace and several industries are starting their building process. The Mayor, as a site contractor, has bid and been awarded several of these jobs. He HAS NOT performed any services for the Town, as a site contractor. There seems to be some concern as to the legality of the issue that the Mayor owns and operates a site contracting business along with performing his duties as Mayor.

My question is as follows: May the Mayor bid and perform services as a site contractor for individuals/businesses or industries building inside the city limits and stay within the parameters of the law? The Mayor understands that if that individual/business or industry appears before the board to ask for tax exemptions and/or other matters requiring approval of the Board of Aldermen, he must recuse himself, therefore removing any possibility that he may influence a vote concerning these individuals/businesses or industries.

My next question is as follows: May the Mayor own and operate any type of business inside the city limits as long as the Town does not purchase from the business during his term and one year after he is out of office.

III. ANALYSIS

The Ethics in Government Laws do not necessarily prohibit any public servant from owning and operating a business but may restrict both the opportunities otherwise available to that business and the
public servant’s conduct in government. 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 a public board from
having any direct or indirect interest in a contract with the government authorized by that board during his or her term or for one year thereafter. Frazier v. State, ex rel. Pittman, 504 So.2d 675, 693 (Miss. 1987). This prohibition applies to a mayor as a member of the governing authority of a municipality and will absolutely preclude the mayor from doing business with the city.

While the mayor is not prohibited from operating his business within the corporate limits, he could be restricted from doing business with any company which has a contract with the town, a situation which
could give the mayor a prohibited indirect interest in that contract. Clearly, the mayor cannot provide
materials or services to the prime contractor on a public construction project funded or otherwise authorized by the town.

Furthermore, if a particular “tax exemption[] and/or other matter[]” constitutes a contract for purposes of Section 109 and Section 25-4-105(2), and the applicant has a business relationship with the mayor, then the board could be prohibited from granting the application. Any contract entered into in violation of Section 109 or Section 25-4-105(2) is null and void. Towner v. Moore, ex rel. Quitman County School District, 604 So.2d 1093, 1096 (Miss. 1992), quoting Smith v. Dorsey, 530 So.2d 5, 9 (Miss. 1988). Specific determinations about whether a particular matter constitutes a contract for purposes of Section 109 and Section 25-4-105(2) must be made on a case-by-case basis.

The requestor is also prohibited from using his position as mayor to obtain a monetary benefit for a
“business with which he is associated,” a term defined in Section 25-4-103(d) as a business “from which he ... derives more than One Thousand Dollars ($1,000.00) in annual income.” See Section 25-4-105(1),
Miss. Code of 1972. To avoid violating this provision, a public servant must recuse himself from the action which would provide the benefit. A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on 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. An abstention is considered a vote with the majority and is not a recusal. Furthermore, the minutes of the meeting should state the recusing member left the room before the matter came before the public body and did not return until after the vote.

In the event an application comes before the board which would not constitute a contract with the town and would not give rise to a violation of Section 109and Section 25-4-105(2), but the application is made by a business with which the mayor is associated, then the board may act upon the application, but the mayor must fully recuse himself. However, a recusal will not prevent or ameliorate a violation of Section 109 and Section 25-4-105(2), as they do not require any affirmative act by an individual but merely action
by the board. Any specific instance of this nature which may arise in the future should be presented to this
Commission in the form of an additional advisory opinion request prior to any official action being taken by the town.

MISSISSIPPI ETHICS COMMISSION



BY: Tom Hood, Executive Director and
Chief Counsel