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 October 6, 1995.

May a member of the board of directors of a county human resource agency simultaneously serve as a member of the board of trustees of a community college if the agency has a contract for professional services with the community college?

          Your opinion request to the Office of the Attorney General dated September 19, 1995, was referred by that Office to the Mississippi Ethics Commission on September 28, 1995, as your request involves the above issue that concerns the Mississippi conflict of interest laws. The Office of the Attorney General must respond to any issues regarding other state laws.

          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 entities 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 Office of the Attorney General must response regarding the application of the Separation of Powers Doctrine to this issue.

          The pertinent conflict of interest laws to be considered here are:

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

"(g) 'Government' 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, 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 funded 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."

          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 governing authority 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 a member of our governing board concurrently serve as a member of the Board of Trustees of a Community College, if our agency has a contract for professional services with the Community College to provide training for some of our employees?

          The Commission formally adopts Advisory Opinion No. 91-097-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 since both the County Human Resource Agency and the Community College are governmental entities an individual simultaneously serving on both governmental entities' boards is not as such prohibited by the conflict of interest laws, even though a contract exists between the two governmental entities.

          This finding is based on the 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.

         The issue presented by the requestor must be viewed as it relates 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 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 or local government.

          Clearly, an individual simultaneously serving on the boards of two governmental entities that have existing contracts between them has the potential of creating suspicion among the public and reflecting unfavorably upon both governmental entities.
 
 
 

Ronald E. Crowe Executive Director