Secreta~y West Point
P.O. Box 22746
Jackson, Mississippi 39225-2746
Telephone (601) 359-1285
RONALD
E.
CROWE,
Executive Director
NINA
B.
Goo~BY
Oxford
ELIZABETH
C.
POWERS
Greenwood
JOHN ALLEN DARNELL
Glen Allan
BEN
H.
STONE
G~lfport
September 9, 1988
DELOS
H.
BURKS
Picayune
Mr. Elbert R. Hilliard
Director
Mississippi Department of Archives and History
P. 0. Box 571
Jackson, MS 39205-0571
RE: Advisory Opinion 88-122-E Dear Mr. Hilliard:
~FCI.'L88~122~E~
During its meeting on September 8, 1988, the Mississippi Ethics Commission considered your advisory opinion request. The facts of your department's request are understood by the Commission to be:
1. The Mississippi Department of Archives and History (MDAH) through its Division of Historic Preserva tion decides when an archaeological cultural resource survey is to be conducted at construction and other sites.
2. The survey is conducted by an archaeologist hired and paid by the private entity involved.
3. Once the survey is completed, it is submitted to the Division of Historic Preservation within MDAH for its review and approval.
4.
MDAH maintains a list of archaeologists who desire to conduct the surveys as a convenience to the private entities who may be involved in any given project.
5. The list includes private archaeologists, some MDAH staff archaeologists who work in the Division of His toric Preservation and some archaeologists employed by the universities.
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~tifl1nti~~Ifl3t
Mr. Elbert R. Hillard
Advisory Opinion 88-122-E
September 8, 1988
Page 2
6. MDAH staff members who conduct the surveys are required to do so on their own time without use of MDAH facilities, equipment, staff or supplies.
7. MDAH employees conducting surveys are not involved in requesting surveys or the review and approval of the surveys.
For your references, the 1983 Conflict of Interest Act is found in Section 25-4-101, et. Seq., 1972 Mississippi Code, Annotated.
Based upon the facts and circumstances contained herein, the Commission voted to advise you that the situation of MDAH staff archaeologists conducting cultural resources surveys does not in and of itself violate the 1983 Conflict of Interest Act. However, the Commission expressed strong concern that the described activity, even though not expressly prohibited, does create a severe appearance of impropr~ety and is thereby contrary to the Legislature's "Declaration of Public Policy" found in Code Section 25-4-101 which states:
"The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as pro vided by law, or as a natural consequence of the employ ment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of con duct which will not raise suspicion among the public that they are likely to be engaged in acts that are in viola tion of this trust and which will not reflect unfavorably upon the state and local governments."
The appearance of impropriety arises because MDAH Division of Historic Preservation requires the survey, a Division employee contracts with the private entity and then the employee's private work is approved by his MDAH Division. The Commission fears that the result of an appearance of impropriety as described herein has a dramatic negative impact upon the credibility of MDAH operations as evidenced by conflict of interest questions currently being raised by third parties.
You should also note that the ethics laws apply to all state and local public servants without regard for the varying programs, nature and operational characteristics of each separate public body. Additional restrictions tailored specifically for
'·_ _
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Mr. Elbert R. Hilliard
Advisory Opinion No. 88-112-E
September 8, 1988
Page 3
the differences of an individual agency is usually and should be provided in the policies of the agency.
This Commission does not attempt to determine conflicts within the intent of an agency adopted policy. Such determinations and enforcement are the right and obligation of the agency and its governing authority.
The Commission also found that should the current survey practice by MDAH employees continue, the work should only be accomplished with the exercise of extreme caution in order to avoid a violation of Code Section 25-4-105(1), (2)(d) and (4) which state:
"(1) No public servant shall use his official position to obtain pecuniary benefit ~or himself other than that compensation provided for by law, or to obtain pecu niary benefit for any relative or any business with which he is associated."
"(2) No public servant shall:
(d) Perform any service for any compensation during his term of office or employment by which he attempts to influence a de cision of the authority of the govern mental entity of which he is a member."
"(4) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the informa tion has not been communicated to the public or is not public information."
Any question of a violation of the above three provisions can only be answered by a determination of facts in each individual instance. However, the Commission did express concern that should MDAH disagree with the survey results as prepared by a MDAH employee for a private entity, the employee's involvement
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Mr. Elbert Hilliard
Advisory Opinion No. 88-122-E
September 9, 1988
Page 4
in the normal processes used to resolve the problems would probably cause him to violate 25-4-105 (1) or (2) (d) or both.
Within your original request, you asked for an opinion relating to both MDAH employees and state university employees. The Commission believes it is not proper to address university employees' involvement in the surveys within an opinion to MDAH. However, the Commission will consider university employees if requested by the Board of Institutions of Higher Learning or a specific university.
The Commission understands that one of the reasons for your request resulted from an internal review of your board's policies. Should that review continue after receipt of this opinion, the Commission has authorized its staff to assist you in an advisory role consistent with this opinion if you feel such assistance would be helpful to you.
Sii~ ely
nald ~Crowe ecutive Director
REC: