This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on April 5, 1996, basing its approval solely on the facts and circumstances stated herein.

May an individual who is a salaried employee of a non-profit counseling center established by a community hospital that receives referrals for inpatient services from a regional mental health commission accept an appointment to the regional mental health commission?

    State law restricts the Mississippi Ethics Commission 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, this opinion does not address the Mississippi laws outside the Commission' s jurisdiction nor the governmental entity's internal rules and regulations.

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 254-103(c), (d), (f)(i)(ii), (g)(i)(v), (h), (1), (m) and (p)(i)(ii)(iii) states:

"(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 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 exercises 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.

(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.

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

(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 finds; or

(iii) Any individual who receives a salary, per diem or expenses paid in whole or in part out of finds authorized to be expended by the government."

Code Section 25-4-105(1), (2), (3)(a)(d) 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.

(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.

(d) Perform any service for any compensation during his term of office or employment by which he attempts to influence a decision of the authority of the governmental entity of which he is 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, absent identifying data, are set forth as follows and considered a part of this opinion. The referenced attached documents because of size are not set forth in this opinion but are available, absent identifying data, in the Commission's office.

I am requesting an opinion from the Ethics Commission on behalf of the County Board of Supervisors and the Mental Health - Mental Retardation Commission as to the appointment of a possible commissioner. The specific opinion requested in regard to conflict of interest issues that could be involved with her appointment as Commissioner for the County.

The possible commissioner is presently employed as outreach co-ordinator for a Counseling Center, an extension of a Hospital. It is my understanding that the Hospital is a private, non-profit community hospital. The possible commissioner receives a salary from the Counseling Center with no commission from referrals made through her office. The Mental Health Commission through direct service staff, makes referrals through the possible commissioner's office to inpatient services available at the Counseling Center. Referrals are made on an as-needed and as- available basis. A formal written agreement between the Mental Health Commission and the Counseling Center does not exist.

The Mental Health Commission is a public entity, a governing authority, as defined by the Attorney General. We provide mainly outpatient services for the severely and persistently mentally ill, developmentally disabled and substance abusers. Attached you should find a copy of our enabling legislation and By-laws of the Commission.

    It is the Commission's understanding that the Hospital is a community hospital established under Sections 41-13-1 et seq., 1972 Mississippi Code Annotated, and that the Counseling Center is a non-profit corporation developed, operated and maintained by the Hospital under the authority given it in Code Section 41-13-35(n). If this understanding is incorrect, the requestor should immediately notify the Commission as this opinion will no longer be applicable.

    Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.

    The individual employed by the counseling center may accept the appointment to the mental health commission without being in violation of Constitutional Section 109 and Code Section 25-4-105(2), both cited above, if the mental health commission does not authorize any contracts with the counseling center during her term or for one year thereafter. Also, the individual may accept the appointment without violating Code Section 25-4-105(3)(a), cited above, if the mental health commission has no existing contracts with the counseling center.

    Notwithstanding the above, the requestor is cautioned to advise the individual that should she accept the appointment to the mental health commission that she should remain keenly aware of the above cited Code Section 25-4-105(1), (3)(d) and (5).

    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 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.

    Therefore, the individual once on the mental health commission must recuse herself from any and all matters, including referrals, that come before the commission that concern her employer.

    In addition, the individual as a commissioner may not attempt to influence a decision of the mental health commission relating to any matters concerning the counseling center. Such an attempt to influence is prohibited by Code Section 25-4-105(3)(d).

    Furthermore, the individual as a commissioner may not intentionally use or disclose non-public information obtained through her employment with the mental health commission that could result in a pecuniary benefit to herself or any other person as prohibited by Code Section 25-4-105(5). A person" as defined in the conflict of interest laws would include the counseling center.

    The issue presented by the requestor also 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 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, the mental health commission's referring individuals to a counseling center that employs one of its commissioners has the potential of creating suspicion among the public and reflecting unfavorably upon the mental health commission.
 
 

Ronald E. Crowe Executive Director