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 June 9, 1995.

May board members of a state commission and a state stewardship co-ordinating committee that administer a federal incentive program including the establishment of cost-share rates to be paid for implementing the practices by landowners participating in the federal incentive program contract with the participating landowners to prepare plans to accomplish the practices which results in the board members being paid by the landowners under the federal incentive program at the cost-share rate they set as board members of the state commission and/or the state stewardship co-ordinating committee?

     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 state 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. Additional support documentation provided by the requestor after the original request is not provided herein because of the volume of material. However, the additional support documentation is on file and available for review in the Commission's office.

This letter is to follow up on your meeting with our staff auditor. During this meeting, the appearance of a conflict of interest between members of a state commission, a state stewardship committee and the federal agency's incentive program was discussed.

The apparent conflict of interest concerns the responsibilities that members have in the establishment of cost-share rates for the incentive program practices; while landowners receive cost-share payments which are used to pay some members of the state commission or state stewardship committee for preparing plans to accomplish the incentive program practices.

We recognize that the commission/committee members do not directly receive payments from the incentive program; however, the commission/committee decides the amounts that are paid for implementing the practices. We believe this creates the appearance of, if not an actual, conflict of interest.

The state department head appointed by the state commission informed us that the Mississippi Ethics Commission is the only entity that could decide if a conflict of interest exists.

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(d), (f)(i)(ii), (1) and (p)(i)(ii)(iii) states:

"(d) 'Business with which he is associated' means any business of 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 exercise 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.

(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, direct or indirect, 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 flunked by 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) 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.

     Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is that the board members of the state commission that are being compensated to prepare the practice plans for the participating landowners have a direct interest in the landowners' contracts under the incentive program in violation of the state conflict of interest laws. Specifically, the board members of the state commission as public officers are in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2).

     The policy making functions of the state commission, particularly the establishment of the cost-share rates, have the affect of authorizing the landowners' contracts under the incentive program. The landowners' contracts would not exist without the state commission's actions.

     In regard to the members of the state stewardship co-ordinating committee, the Commission formally adopts Advisory Opinions No. 94-085-E and No. 94-066-E in response to this request and by attachment incorporates them into this opinion.

     Based solely on the additional documentation provided by the requestor and the attached opinions, the Commission's opinion is that the state stewardship co-ordinating committee appears advisory in nature and therefore, there is no authorization of a contract by the state stewardship co-ordinating committee. Without an "authorization", there is no violation of Constitutional Section 109 or Code Section 25-4-105(2).

     Not withstanding the above, application of Code Section 25-4-105(2) could be relevant if the state has abdicated its policy making authority to the state stewardship co-ordinating committee.

     If in fact the state stewardship co-ordinating committee is functioning as an advisory board, its members should also be keenly aware of 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 detail 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.

     Members of the state stewardship co-ordinating committee voting on cost-sharing measures on particular program practices which the members or their businesses intend to perform for participating landowners is an example of a prohibited action under Code Section 25-4-105(1).

     The issue presented by the requestor in regard to the members of the state stewardship co-ordinating committee also must be viewed as it relates to Code Section 25-4-101, set forth above.

This 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 unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state and local government.

     Clearly, members of the stewardship co-ordinating committee contracting with participating landowners in the incentive program has the potential of creating suspicion among the public and reflecting unfavorably upon the state.
 

Ronald E. Crowe Executive Director