This Advisory Opinion concerns the following issues 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.

ISSUE 1. May a county supervisor be employed as a consultant by a consulting firm to work on projects in counties other than the one he serves as a county supervisor?

ISSUE 2. May a county supervisor who is also a board member of a self-help housing program be employed as a consultant by governmental entities, including county governments other than the county he serves as a county supervisor, to establish similar self-help housing programs?

    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 local governmental entity are not addressed by this opinion.

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 25-4-103(c), (d), (f)(i)(ii), (g)(i), (h), (k)(i)(ii), (1) and (p)(i)(ii)(iii) states:

"(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 non-profit corporation or other such entity, association or organization receiving public funds.

(d) 'Business with which he is associated' means any business or 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) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties.

(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.

(k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).

(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.

(p) 'Public servant' means:

(i) Any elected or appointed official of government.

(ii) Any officer, director, commissioner, supervisor, chief h e a d, 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."

Code Section 25-4-105(1), (2) and (3)(a) 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:

(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."

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

Please advise me: As a county supervisor, am I permitted by law to work with a consultant firm as a hired consultant on projects outside of the county?

Also, as a county supervisor and board member for a Self-Help Housing Program am I permitted to work as a hired consultant in other counties helping to establish the same program there?

    In addition to the requestor's letter, the Commission's staff obtained the following additional information from the requestor.

    ISSUE 1. The consulting firm considering employment of the county supervisor is a for profit corporation and is presently contracting with the supervisor 5 county. The contract involves the construction of a new jail facility.

    ISSUE 2. The self-help housing program is established under a federal grant known as a 523 Technical Assistance Grant. The county obtained a $10,000.00 grant to prepare an application for participation in the self-help housing program. The county's application was approved and it received $173,000.00 to administer the self-help housing program.

    The self-help housing program requires that a governmental entity, in this case the county, receive the grant funds. The grant also requires the entity applying for the federal funds to have a board of directors. The county board of supervisors serves as the uncompensated members of the subject grant's board of directors.

    Once the grant is approved, the governmental entity in co-operation with RCED, formally known as FHA, seeks qualified families to obtain low interest housing loans from RCED. The subject grant is to assist approximately twenty (20) families obtain loan interest housing loans.

    The requestor/supervisor was actively involved in the application process and the operation of the self-help housing program in his county. The requestor/supervisor was not compensated for his involvement in his county's program.

    The requestor/supervisor is requesting this opinion to determine if he may now contract with other governmental entities, including other counties, to assist them with obtaining funding to file an application for a self-help housing program and, if approved, to administer the grant for them. According to the requestor/supervisor, he would be paid for these services from the federal funds.

    The Commission formally adopts Advisory Opinion No. 93-086-E, with attachments, in response to ISSUE 1 and by attachment incorporates it into this opinion.

    Based solely on the facts and circumstances presented by the requestor, the Commission is providing the following opinions.

    ISSUE 1. A county supervisor's employment as a consultant with a consulting firm to perform work in counties other than the one he or she serves as a county supervisor is not as such prohibited by the conflict of interest laws.

    However, a county supervisor may not be employed by any business, including a consulting firm, that is contracting with the county the supervisor is elected to serve. Such employment would violate Constitutional Section 109 and Code Section 25-4-105(2) and(3)(a), cited above, because the supervisor would have a direct or indirect interest in the contract and/or a material financial interest in the business.

    Furthermore, the above referenced conflict of interest laws would be violated by the supervisor even if his or her employment responsibilities with the business contracting with his or her county were unrelated to his or her county's contract with that business.

    Therefore, the requestor/supervisor is prohibited from being employed as a consultant by the consulting firm presently contracting with the county he serves as supervisor.

    ISSUE 2. A county supervisor's service as a noncompensated board member of a self-help housing program and/or employment as a consultant by other governmental entities, including other county governments, to establish similar self-help housing programs is not as such prohibited by the conflict of interest laws.

    Notwithstanding the above, a county supervisor may not be a compensated board member of a self-help housing program established by a federal grant which the supervisor's county applied for and administered.

    As a compensated board member of the self-help housing program, the county supervisor would have an interest in the grant authorized by his board in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2).

    The requestor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2). Even without the requestor's vote, the authorization by the requestor's board nonetheless results in a contract in which he has a prohibited interest.

    In addition, the requestor may not use his position as a county supervisor and/or a board member of the self-help housing program to obtain consultant positions with other governmental entities as such actions would violate the above cited Code Section 25-4-105(1).

    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.

    As stated above, while a recusal would prevent a violation of Code Section 25-4-105(1), it would not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2).
 
 
 

Ronald E. Crowe Executive Director