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 October 6, 1995.
May a member of the governing authority of a municipality or a county that has established a joint municipal and county economic development authority:

1. after being contacted by an industrial prospect in the course of his or her official position then contact the joint municipal and county economic development authority for the purpose of instructing its staff to make sure the industrial prospect locates on the member's property;

2. contact an industrial prospect directly to discuss his or her property as a potential site when he or she learned of the industrial prospect by reason of his or her official position; and

3. attend briefings by the joint municipal and county economic development authority that concern industrial prospects that are considering potential sites proposed by the authority's staff when one of the potential sites is owned by the member?

May a board member of the joint municipal and county economic development authority:

4. sell his or her property to the municipality and/or county which will then donate it to an industrial prospect for use as a site when the authority's staff was involved in recommending available sites to the industrial prospect without the board member having knowledge of the recommendations?

          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 entities 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 25-4-101 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(b), (c), (d), (e), (f)(i)(ii), (g)(i) (ii)(iii)(iv)(v), (h), (i), (1), (m), (n), (o), (p)(i)(ii)(iii) and (q) states:

"(b) 'Benefit' means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.

(c) 'Business' means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a non-profit corporation or other such entity, association or organization receiving public funds.

(d) 'Business with which he is associated' means any business or 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 exercises control.

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

(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;

(ii) Municipalities;

(iii) All school districts;

(iv) All courts; 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.

(i) 'Income' means money or thing of value received, or to be received, from any source derived, including but not limited to any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof

(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.

(m) 'Person' means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity

(n) 'Property' means all real or personal property.

(o) 'Public funds' means money belonging to the government (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(1), (2) and (5) 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.

(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information."

          Pertinent facts and circumstances provided by the requestor in the form of the requestor's letter dated October 2, 1995, absent identifying data, are attached hereto and considered part of this opinion.

          Based solely on the facts and circumstances presented in the requestor's letter, the Commission offers the following opinion.

          Issue 1. The governing authority member may not use the information gained by reason of or in the course of his or her official position if it could result in a pecuniary benefit to him or her if the industrial prospect provided the information with the understanding it was to be confidential as to do so is prohibited by the above cited Code Section 25-4-105(5).

          Clearly, if in fact the information was to be confidential, the governing authority member's contacting of the authority's staff could result in a pecuniary benefit to him or her. The pecuniary benefit being the location of the industrial site on his or her property.

          In addition, the governing authority member's contacting of the authority's staff to make sure his or her property is the industrial site chosen constitutes a use of office which is prohibited by the above cited Code Section 25-4-105(1). Such contact is prohibited because his or her influence over the authority's staff comes from the fact that he or she is a member of one of the governing authorities that established the economic development authority.

          Issue 2. As stated above, the governing authority member may not use the information gained by reason of or in the course of his or her official position if it could result in a pecuniary benefit to him or her if the industrial prospect provided the information with the understanding it was to be confidential as to do so is prohibited by Code Section 25-4-105(5).

          Clearly, if in fact the information was to be confidential, the governing authority member's contacting of the industrial prospect directly gives him or her an advantage over other potential site owners which could result in a pecuniary benefit to him or her as stated above.

          In regard to both Issue 1 and Issue 2, there are other concerns as to the conflict of interest laws if a circumstance similar to that addressed in Issue 4 exists. Specifically, these concerns are if the governing authorities are to fund the purchase of the property and if the subject property was owned by one of the governing authorities' members that member(s) would be in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2).

          Issue 3. A governing authority member's attending briefings by the joint municipal and county economic development authority where potential sites are discussed when one of the potential sites is owned by the member does not in and of itself violate the conflict of interest laws.

          Notwithstanding the above, the member's use of confidential information given at such briefings to obtain a pecuniary benefit could violate Code Section 25-4-105(1) and (5) as discussed above.

          Issue 4. Assuming the economic development authority board member has no knowledge of his or her property's consideration, the industrial prospect's decision to use the site and the governing authorities' decision to purchase the site would not as such violate the conflict of interest laws.

          Notwithstanding the above, an action by the economic development authority board that in effect resulted in an authorization of the contract to purchase the land, this could include but is not limited to funding and/or recommending, would result in the property owner/board member being in violation of the Constitutional Section 109 and Code Section 25-4-105(2).

          The economic development authority board's adoption of policies and procedures that comply with Code Section 25-4-101 would be one way to help ensure compliance with the conflict of interest laws.

          Code Section 25-4-101, cited above, 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.

          The policies and procedures could require economic development authority board members or governing authority board members to fully and completely recuse themselves from actions resulting in circumstances that have the potential of creating suspicion among the public and/or reflecting unfavorably upon their governmental entities.

          Clearly, all of the Issues discussed above have the potential of creating suspicion among the public and/or reflecting unfavorably upon the governmental entities involved.

          In order to avoid the appearance of using or the actual using of their official positions to obtain a pecuniary benefit, 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 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. 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.

          The requestor is cautioned to advise the board members that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2). Even without a board member's vote, the authorization by the member's board nonetheless results in a contract in which the board member has a prohibited interest.
 
 
 

Ronald F. Crowe Executive Director