ADVISORY OPINION NO. 07-031-E

March 2, 2007

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.

(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.

(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.

(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.

(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.

(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.

II. FACTS

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

The Mississippi Department of Mental Health (hereinafter “DMH”) is governed by a board made up of nine members appointed in staggered terms by the Governor. Three of these members are presently psychiatrists. One of these psychiatrists resides and practices in a severely underserved area of the state.

There are fifteen Regional Mental Health districts in Mississippi, separate and apart from DMH. Each is governed by a coalition of county Boards of Supervisors which appoint governing boards. These Regional Mental Health districts operate mental health facilities serving the particular counties which make up their district, and which appoint members to their governing boards. They are funded through a combination of county funds, Medicaid funds, and state matching funds appropriated by the Legislature for that purpose. DMH has no administrative control over these Regional Mental Health districts or their facilities, and makes no employment decisions concerning their staff.

Considering the restrictions of MCA Section 25-4-105(3)(a) and the exceptions listed in paragraph (4)(b), the Board of Mental Health would like to present the following questions:

1. Considering the underserved population at stake, can a member of the Board of Mental Health who is a psychiatrist contract to work for the Department of Mental Health and under what circumstances and protections?

2. Can a member of the Board of Mental Health who is a psychiatrist contract to work for one of the separate Regional Mental Health districts run by the counties which are not part of the Department of Mental Health?

III. ANALYSIS

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 funded or otherwise 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). Consequently, a member of the Board of Mental Health is strictly prohibited from contracting with the Department of Mental Health under any circumstances.

The regional mental health districts were authorized in Sections 41-19-31 and 41-19-33, Miss. Code of 1972. The districts are created by the constituent counties’ boards of supervisors, who also appoint members of the district’s governing commissions. Id. Each district is a separate “governmental entity,” as defined in Section 25-4-103(h), Miss. Code of 1972, quoted above. Each regional mental health district is also a separate entity from the state Department of Mental Health. Pursuant to Section 25-4-105(3)(a), Miss. Code of 1972, also quoted above, no public servant may be employed by or otherwise be a contractor to the same “governmental entity” he or she serves, subject to some very limited statutory exceptions contained in Section 25-4-105(4). Thus, a member of the Board of Mental Health is not necessarily prohibited from contracting with a regional mental health district. This opinion clarifies Op. Miss. Ethics Commn. No. 02-008-E.

However, an intergovernmental agreement can present an additional issue if it funds or otherwise authorizes a board member’s contract with another governmental entity. Section 109 and Section 25-4-105(2), discussed above, can also prohibit a member of the Board of Mental Health from contracting with a regional mental health district if the Board of Mental Health takes any action whatsoever which funds or otherwise authorizes the member’s contract with the district. Examples of such action could include but are not limited to grants, federal pass-through funding or joint programs.

MISSISSIPPI ETHICS COMMISSION

BY: Tom Hood, Executive Director and
Chief Counsel