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 February 8, 1996.

May an employee of a municipality's airport authority simultaneously serve as the chairman of the same municipality's planning committee?

    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 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(a), (f)(i)(ii), (g)(ii)(v), (h), (1), (m) and (p)(i)(ii)(iii) states:

"(a) 'Authority' means any component unit of a governmental entity.

(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:

(ii) Municipalities; 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 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), (3)(a), (4)(h) and (5) state:

"(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.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee.

(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.

This law firm has been tasked with requesting an ethics opinion as to whether or not it is proper for an employee of the Municipal Airport Authority to serve as chairman of the Municipal Planning Committee.

This individual has served as chairman of the Municipal Planning Committee since 1993, and he still has one and one-half years to serve in his current term. Members of the Planning Committee are nominated by the Mayor and confirmed by the City Council.

In January, 1996, this individual was hired by the Municipal Airport Authority as a full-time marketing administrator. The Municipal Airport Authority is a creation of the City under the Airport Authorities Law. The Municipal Airport Authority technically is an independent commission, and its members do not serve at the will and pleasure of the Mayor or City Council. However, the members of the Municipal Airport Authority are appointed by the Mayor and confirmed by the council. However, the City is responsible for any budgetary shortfalls suffered by the Municipal Airport Authority, and the city provides all of the Authority's capital funds each year without reimbursement. In the past few years, the capital funds budget provided by the City has been approximately $150,000. Most recently, the City appropriated approximately $150,000 for a marketing budget in conjunction with the hiring of this individual as a full-time marketing administrator.

The marketing administrator will have the primary focus of attracting an additional airline to the City. Additionally, the marketing administrator will promote other services of the Municipal Airport Authority, and he presumably will encourage the sale or rental of property in the Municipal Airport Industrial Park.

The Municipal Planning Committee hears applications and makes recommendations on a variety of zoning matters affecting residents and businesses in the City. The City requests an opinion as to whether this individual may remain in both positions or must resign from one or the other.

    In addition to the above facts and circumstances, the requestor advised that the Municipal Planning Committee is advisory in nature. The municipality's governing authority has the final decision on all matters coming before the Municipal Planning Committee. Also, the requestor advised that the Municipal Airport Authority was established under §§61-3-1 et seq., 1972 Mississippi Code Annotated.

    The Commission formally adopts Advisory Opinion No. 93-032-E in response to this request and by attachment incorporates it into this opinion.

    The Municipal Planning Committee is similar in make-up and operation to the planning and zoning commission addressed in the attached opinion. Therefore, the Municipal Planning Committee is not a separate authority of the municipality based on the same reasoning that the planning and zoning commission in the attached opinion was not considered a separate authority of its municipality.

    However, the Municipal Airport Authority is a separate authority of the municipality for the following reasons. Code Section 61-3-5 states that a municipal airport authority shall be a public body, corporate and politic once created by its municipality. In addition, it states that the commissions shall be appointed for and serve a term of five years. Code Section 61-3-15 sets forth the powers of a municipal airport authority which among them are to sue and be sued; to hire its own employees; to execute contracts; and, to acquire its own facilities. Although this is not all that supports a municipal airport authority as being a separate authority of its municipality, it is a sufficient statement for purposes of this opinion.

    Based solely on the facts and circumstances set forth above, the Commission's opinion is as follows.

    The individual's service on the Municipal Planning Committee and simultaneous employment by the Municipal Airport Authority is not as such prohibited by the conflict of interest laws.

    The individual is not in violation of Code Section 25-4-105(3)(a), cited above, as the Municipal Airport Authority is a separate authority from the municipal governing board of which the Municipal Planning Committee is considered a component. Therefore, the exception set forth in Code Section 25-4-l05(4)(h), cited above, allows the individual to be an officer/employee of one authority of his governmental entity and be compensated by another authority of his governmental entity.

    Notwithstanding the above, the requestor should advise the individual to be keenly aware of the above cited Code Section 25-4-105(1) 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 detail 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.

    Code Section 25-4-105(5) prohibits public servants from using non-public information gained by reason of their public position in any way that could result in a pecuniary benefit for themselves or any other person.

    The individual's intentional use of non-public information gained by reason of his official positions with the Municipal Planning Committee and/or the Municipal Airport Authority that could result in a pecuniary benefit for the individual or any other person would violate the above cited Code Section 25-4-105(5).

    The definition of person set out in Code Section 25-4-103(m), cited above, would include the Municipal Planning Committee and the Municipal Airport Authority.

    In addition to be above, the requestor is cautioned to advise the individual that as a member of the Municipal Planning Committee, which is a governmental board, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, could come into play.

    Constitutional Section 109 and Code Section 25-4-105(2) prohibit a member of a governmental board from having an interest, either direct or indirect, in any contract authorized by the member's board during the member's term or for one year thereafter.

    Even though the Municipal Planning Committee is advisory in nature and therefore, would not likely be authorizing contracts, the requestor should nonetheless make the individual keenly aware of the prohibitions set forth in Constitutional Section 109 and Code Section 25-4-105(2).

    The requestor also is cautioned to advise the individual that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2) and (3)(a). 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