OFFICIAL ADVISORY OPINION NO. 96-139-E
 
December 6, 1996

This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on December 6, 1996, basing its approval solely on the facts and circumstances stated herein.

May a spouse of a member of the Chamber of Commerce board of directors be employed by the county economic development district to provide administrative duties for the Chamber when the district contracts with the Chamber to provide administrative support for a fee?
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:

"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(f)(i)(ii), (g)(i)(ii)(iii)(iv)(v), (h), (1), (p)(i)(ii)(iii) and (q) states:
"(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.

(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, 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.
(q) 'Relative' means the spouse, child or parent."

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."
Pertinent facts and circumstances in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of this opinion.

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

The Chamber of Commerce is not a governmental entity under the definition set forth in the above cited Code Section 25-4-103(g)(i)(ii)(iii)(iv)(v). Also, the member of the Chamber's board of directors is not a public servant under the definition set forth in the above cited Code Section 25-4- 103(p)(i)(ii)(iii). Therefore, the conflict of interest laws do not apply to him.

Since the conflict of interest laws do not apply to the Chamber's director, the county economic development district may employ his spouse.

A reversal of the rolls resulting in the spouse of one of the district's directors being employed by the Chamber to provide the district administrative support for a fee would violate the conflict of interest laws. This is because the district is a governmental entity under the conflict of interest laws and its directors are public servants. The district's director would have violated Constitutional Section 109 and Code Section 25-4-105(2), cited above, because he would have an interest in the contract between the district and the Chamber. Also, he would have violated Code Section 25-4-105(1), cited above, if he voted for the contract with the Chamber.

Ronald E. Crowe Executive Director