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 an individual continue to serve as a board member of a planning and development district if the planning and development district accepts a loan from a rural electric power association when the individual is also a member of the board of directors of the rural electric power association?

         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(f)(i)(ii), (g)(v), (h) and (p)(i)(ii)(iii) states: 
 
         "(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:

(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." 

         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 [rural] Electric Cooperative Association (at large member) and also a member of the Planning and Development District Board. I am in the process of filling out the Statement of Economic Interest form.

          Please advise me if the Planning and Development District makes a loan from the Electric Association can I sit on the Board of each association?
 
         The Commission formally adopts Advisory Opinion No. 92-203-ER in response to this request and by attachment incorporates it into this opinion.

         First, the requestor is advised to review the attached opinion. In the attached opinion, this Commission concluded that a planning and development district is a "public body" for purposes of the Ethics in Government laws. Specifically, the Commission found, "PDD's are unique and are not clearly defined public entities. However, the Commission finds the PDD's are clearly instruments of government and are thus part of government under Section 25-4-103(g)(v)."

         Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is that the requestor may not continue to serve on the board of the planning and development district should the rural electric power association loan money to the planning and development district as the requestor would have an interest in the loan that is prohibited by the above cited Constitutional Section 109 and Code Section 25-4-105(2).

         The requestor has a fiduciary responsibility to both the planning and development district and the rural electric power association.

         Therefore, the requestor has a fiduciary interest in the loan contract between the public entity he services, the planning and development district, and the private interest he services, the rural electric power association.

         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 planning and development district board nonetheless results in a contract in which the requestor has a prohibited interest.
 

Ronald B. Crowe Executive Director