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 an elected school board member simultaneously serve as a county literacy co-ordinator for a nonprofit literacy council when the nonprofit literacy council, independent of the school district, operates a literacy program and child care center located in a building owned by the county board of supervisors?

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 25-4-103(c), (d), (f)(i)(ii), (g)(i)(ii)(iii)(iv)(v), (h), (1) 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 nonprofit 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;

(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."

Code Section 25-4-105(1), (2) and (3)(d) 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:

(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."

The Commission formally adopts Advisory Opinions No. 95-130-E and No. 90-023-E in response to this request and by attachment incorporates them into this opinion.

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

The conflict of interests laws do not as such prohibit a county school board member from simultaneously serving as a county literacy co-ordinator for a nonprofit corporation and as a director

operating a day care center for the nonprofit corporation if no contracts or funding exists between the nonprofit corporation and the school district.

However, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, do prohibit a county school board member from being an employee of a nonprofit corporation that is contracting, including jointly operating a literacy program and day care center, with the school district. This is especially true when the nonprofit corporation compensates the school district's teacher that the school board assigns to work under the supervision of the county literacy coordinator/school board member.

As set forth in the attached opinions, the public servant's prohibited interest can be a fiduciary interest and the contract can be oral or written.

Further, the conflict of interest laws do not prohibit the nonprofit corporation employing the school board member from using a building furnished by the county board of supervisors since the county is a separate governmental entity from the county school district. The requestor is referred to the definitions of "governmental" and "governmental entity" set forth in the above cited Code Section 25-4-103(g) and (h).

The requestor is cautioned to avoid any situation that could result in a violation of the above cited Code Section 25-4-105(3)(d). Code Section 24-4-105(3)(d) prohibits the school board member from acting in any way to influence the school board to continue programs or participate in new programs with the nonprofit corporation when the nonprofit corporation is compensating the school board member.

The requestor is advised to remain keenly aware of the above cited Code Section 25-4-105(1). Code Section 25-4-105(1) prohibits a public servant from using his or her official position to obtain a pecuniary benefit for the public servant, the public servant's relatives or a business in which the public servant is associated. In this instance, the nonprofit corporation is a business in which the school board member is associated as defined in the above cited Code Section 25-4-103(c) and (d).

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 quailify 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 school board member should recuse herself from any matter coming before the school board that concerns the nonprofit corporation.

The requestor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2). Even without the 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 E. Crowe Executive Director