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 December 1, 1995.
 

May a municipal board member serve on the board of directors of a non-profit center that provides rehabilitation services to the community when the municipality provides funding to the non-profit center?
 
          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 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), (f)(i)(ii), (g)(ii), (h) 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.

(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:

(ii) Municipalities.

(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."

Code Section 25-4-105(2) states:

"(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."

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

I am a member of the Board of Directors of the Regional Rehabilitation Center. I have been on the Board of Directors for approximately twenty years. I was elected to the City Council of the City in 1993. The City gives money to the Regional Rehabilitation Center.

I need an opinion as to whether it is legal for me to serve on the Board of Directors of the Regional Rehabilitation Center since we do fund them thousands of dollars a year or whether I should resign.

          In addition to the above facts and circumstances provided in the requestor' 5 letter, the Commission's staff was provided the following additional information.

          The Regional Rehabilitation Center is a 501(3)(C) non-profit corporation. It receives funding from the requestor's municipality, three counties, the United Way and private donations. It does not presently receive state funding since the State Department of Vocational Rehabilitation did not renew its contract to provide services to the blind on September 30, 1995. Its function is to provide physical, occupational, speech and hearing impaired therapy to those in need of these services.

          The Commission's staff also was advised that the Regional Rehabilitation Center's board members serve without compensation. They do not receive a salary, per diem or travel expenses.

          The Commission formally adopts Advisory Opinion No. 94-026-E in response to this request and by attachment incorporates it into this opinion.

          Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is the municipal council member's serving as a board member of the Rehabilitation Center when the Center is receiving funding from the municipality is prohibited by the above cited Constitutional Section 109 and Code Section 25-4-105(2).

          The issue presented here is comparable to the tourism commission member being a board member of the non-profit education foundation discussed in the attached advisory opinion. As stated in the attached opinion, "the uncompensated member of the education foundation has a fiduciary responsibility to the foundation and thus an interest in any contract(s) with the Tourism Commission." [Emphasis added]

          In a like manner, the council member has a fiduciary responsibility to the Rehabilitation Center. Without the order of the municipal council to fund the Rehabilitation Center, it would be unable to continue its current contractual obligations in which the council member has a fiduciary interest in continuing.

          The council member 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 council member's vote, the authorization by the municipal council nonetheless results in a contract in which the council member has a prohibited interest.
 
 
 

Ronald E. Crowe Executive Director