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 July 7, 1995.

Issue 1. May a county human resource agency enter into a contract for professional services with a former member of the agency's board of directors whose term of office expired less than one year ago?

Issue 2. May the purchasing agent of a county human resource agency be related to another employee whose job responsibility requires close co-ordination with the purchasing agent?

    Your opinion request to the Office of the Attorney General dated June 2, 1995, was referred by that Office to the Mississippi Ethics Commission on June 16, 1995, as your request involves the above issues that concern the Mississippi conflict of interest laws. The Office of the Attorney General will be responding to your request in regard to how other state laws may affect the issues you presented.

    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.

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

We are a human resource agency created by a grant of legislative authority found at §§17-15-1 through 17-15-11 of the 1972 Mississippi Code Annotated, as amended.

To what extent, if any, may the Agency enter into a contract for professional services with a former member of the agency's Board of Directors whose term of office expired less than one year ago?

To what extent, if any, may the Purchasing Agent of the Agency be related to another employee whose job responsibility requires close co-ordination with the Purchasing Agent in ordering materials, supplies and equipment; requisitioning repairs; certifying that such repairs have been satisfactorily completed; certifying that such materials supplies were received; and so forth?

Does §17-15-3 imply that an individual board member is limited to a single five-year term? Or, may an individual board member serve more than five consecutive years if so approved by a majority vote of the Board?

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 25-4-101 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 provided by law, or as a natural consequence of the employment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the state and local governments."

Code Section 25-4-103(f)(i)(ii), (g)(i)(v), (h), (1), (p)(i)(ii)(iii) and (q) 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:

(i) Counties; and

(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.

(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

(iil) 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.

(q) 'Relative' means the spouse, child or parent."

Code Section 25-4-105(1) and (2) 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."

    Issue 1. Based solely on the facts and circumstances presented herein, the Commission's opinion is that the county human resource agency entering into any contract with a former member of the agency's board of directors within one year of the expiration of the former member's term violates the above cited Constitutional Section 109 and Code Section 25-4-105(2).

    Issue 2. Based solely on the facts and circumstances presented herein, the Commission's finding is that the purchasing agent of a county human resource agency being related to another employee whose responsibility requires close co-ordination with the purchasing agent does not, as such, violate the conflict of interest laws.

    Notwithstanding the above, the purchasing agent and the other employee may not use their respective positions to obtain a pecuniary benefit for a relative, including each other. A relative for purposes of the Ethics in Government laws means the spouse, child or parent of the public servant and is defined in the above cited Code Section 25-4-103(q).

    Code Section 25-4-105(1), cited above, prohibits public servants from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business 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 form subject matters providing the pecuniary interests.

    A total and complete recusal requires that the public servant avoid debating, discussing or officially acting on the subject matter, including discussions with 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.  Where appropriate, 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.

    Issue 2 must be viewed as it related to Code Section 25-4-101, set forth above.  This code section sets the tone for the conflict of interest laws as it is the Legislature's "Declaration of Public Policy."  This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavourably upon the state or local government.

    Relatives working in such close association as that described in Issue 2 has the potential of creating suspicion among the public and reflecting unfavorably upon the agency.  This is especially true if the relationship involves a spouse, child or parent or if either the purchase agent or the other relative employee supervises or monitors the other's work.
 

                                                            Ronald E. Crowe
                                                            Executive Director