This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on August 25, 1995.

May the executive director of an entity which is a political subdivision of the State accept an appointment to a county tourism commission?

    The Mississippi Ethics Commission is restricted 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, Mississippi laws outside the jurisdiction of the Commission and internal rules and regulations of the state and local governmental entities are not addressed by this opinion.

    The Separation of Powers Doctrine, Article I, Section 2, Mississippi Constitution of 1890, is an area of state law outside the jurisdiction of this Commission. Therefore, the Office of the Attorney General must address the application of the Separation of Powers Doctrine to this issue.

 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 25-4-1 03(g)(v), (h), (1), (m) and (p)(i)(ii)(iii) states:

"(g) 'Government' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(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.

(1) '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.

(m) 'Person' means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.

(p) 'Public servant' means:

(i) Any elected or appointed official of the government;

(ii) Any officer, direct or indirect, 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

(iii) Any individual who receives a salary, per diem or expenses paid in whole or in part out of the funds authorized to be expended by the government."

Code Section 25-4-105(1), (2), (3)(d) and (5) states:

"(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.

(3) 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 decision of the authority of the governmental entity of which he is a member.

(5) 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 information has not been communicated to the public or is not public information."

    Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered part of this opinion.

Pursuant to our telephone conversation, as I advised, I am general counsel for a State entity. The entity is a political subdivision of the State of Mississippi. The entity has an individual who serves as the Executive Director.

The County Tourism Commission is a county agency that is funded by county appropriations, with appointments to the Board made by the County Board of Supervisors. An opening on the Board is available and it is contemplated that the entity's Executive Director will be nominated for appointment to that position.

We would respectfully request your opinion and advice as to whether any conflict would arise from this situation that would prohibit the entity's Executive Director from accepting such an appointment.

    This opinion is based on the understanding that no contracts exist between the state entity and the county tourism commission. This opinion will no longer apply should at any time a contract be entered into between the state entity and the county tourism commission. Furthermore, the existence of such a contract may result in the appointee being in violation of the conflict of interest laws.

    Specifically, Constitutional Section 109 and Code Section 25-4-105(2), cited above, must be evaluated should a contract authorization, including funding, be considered between the two public entities.

    Constitutional Section 109 and Code Section 25-4-105(2), prohibit a public servant from having a direct or indirect interest is a contract authorized by a board of which he or she is a member. The direct or indirect interest prohibited by the above referenced conflict of interest laws can include a conflicting fiduciary interest.

    Based solely on the facts and circumstances provided by the requestor, the Commission's opinion is that the appointment of the executive director of a state entity which is a political subdivision of the State to a county tourism commission is not as such prohibited by the conflict of interest laws.

    The requestor is cautioned to advise the appointee to also remain keenly aware of Code Section 25-4-105(1), (3)(d) and (5), cited above, when performing his duties as executive director of the state entity and as a board member of the county tourism commission.

    Code Section 25-4-105(1) prohibits public servants from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business with which they are associated.

    In order to avoid using their official positions to obtain a pecuniary benefit, the public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests. An abstention is a vote with the majority of the governing entity's board and therefore does not qualify as a recusal.

    A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during the official meeting, but also avoid discussing the subject matter with other board members, staff or any other person prior to and after the official meeting. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

    Also in order to properly recuse oneself from a matter, the public servant must leave the room or area where such discussions, considerations and/or actions take place. The minutes of the governing entity's board should state the public servant left the meeting by showing him or her absent for that matter.

    In regard to Code Section 25-4-105(3)(d), the appointee must avoid any attempt to influence a decision of the county tourism commission's board when such efforts are part of his duties as executive director of the state entity. His attempt to influence the decision of the governmental entity of which he is a member on behalf of or in the interest of the state entity as its compensated executive director is prohibited by Code Section 25-4-105(3)(d).

    Furthermore, the appointee may not intentionally use or disclose non-public information obtained through his or her official position with either public entity that could result in a pecuniary benefit to himself or any other person as prohibited by Code Section 25-4-105(5).

    A "person" as defined in Code Section 25-4-103(m), cited above, when appropriate means a governmental entity such as the county tourism commission or the state entity.
 

Ronald E. Crowe Executive Director