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 July 7, 1995.

May three (3) governmental entities following enabling legislation, create, fund and support an economic development foundation, established as a non-profit corporation, when the foundation's board of directors will be composed of board members of the three (3) governmental entities?

    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 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 requestor is advised to contact the Office of the Attorney General regarding the application of the Separation of Powers Doctrine to this issue.

    Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered part of this opinion. The Bill referenced in the requestor' 5 letter is available for review in the Commission's office.

As I advised you, the Mississippi Legislature in this past Legislative Session adopted a Bill which was signed into law by the Governor of the State of Mississippi. For your benefit, I am enclosing a signed copy of the Bill for your study and review. As you can see, the Bill is self-explanatory. In the Bill, it authorizes the establishment of the County Economic Development Foundation, Inc. for industrial and economic growth. The Bill specifically authorized the governmental entities to allocate money for this non-profit organization. It also provides that elected officials from the Board of Supervisors and the municipalities within the county to serve on said foundation.

The purpose of this letter is to request a formal Advisory Opinion from the Mississippi Ethics Commission as follows: Is any statutory prohibition under the Ethics in Government Act that would prohibit a member of the Board of Supervisors as well as the elected officials of the municipalities to serve as a member of the Board of Directors on behalf of the County Economic Development Foundation, Inc.? Further, for your clarification, it is my understanding that the appropriate governmental entities anticipate allocating and contributing funding from their respective budgets to the County Economic Development Foundation, Inc. beginning with fiscal year 1995-96, which commences on October 1, 1995.

The pertinent conflicts 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(e), (g)(i)(ii)(v), (h), (1) and (p)(i) states:

"(e) 'Compensation' means money or thing of value received, or to be received, from any person for services rendered.

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

(i) Counties;

(ii) Municipalities;

(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."

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."

    The Commission formally adopts Advisory Opinion No. 93-008-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 finds that the County Economic Development Foundation, Inc. is a quasi-governmental entity and the elected officials serving on its board when their respective governmental entities are funding it does not as such violate the conflict of interest laws.

    This finding is based on any contractual interests, if any, being public in nature rather than private. The conflict of interest laws are applicable to competing private interests, not the competing interest of governmental entities.

    Notwithstanding the above, the elected officials would violate certain or all of the above cited conflict of interest laws should they receive compensation as members of or personal pecuniary benefits from contracts with the County Economic Development Foundation, Inc.
 
 
 

Ronald E. Crowe Executive Director