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 a corporation that is a public body corporate and politic loan finds to a for- profit partnership to construct a multi-family housing facility in a municipality when the for-profit partnership's general partner is a corporation whose chief executive officer is the executive director of a municipal housing authority established by a municipality other than the one in which the multi-family housing facility is to be constructed?
 
    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(c), (d), (f)(i)(ii), (g)(ii)(v), (h), (k)(i)(ii), (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 non-profit corporation or other such entity, association or organization receiving public finds.

(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:

(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.

(k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).

(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), (3)(a)(d), (4)(g) 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.

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

(g) May contract with the Mississippi Veteran's Home Purchase Board, Mississippi Housing Finance Corporation, or any other state loan program, for the purpose of securing a loan; however, public servants shall not receive favored treatment.

(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 in the form of the requestor's letter dated December 22, 1995, absent identifying data, are attached hereto and considered part of this opinion.

    The requestor is advised that this opinion will no longer be in effect should the facts or circumstances change or in any way be contrary to those presented in the attached letter.

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

    It would not as such be a violation of the conflict of interest laws for the executive     director of a municipal housing authority to be chief executive officer of a corporation that is the general partner in a for-profit partnership which is receiving funding from the public body corporation to construct a multi-family housing facility in a municipality other than the one served by the executive director's housing authority. This is based on the above cited Code Section 25- 4-105(4)(g).

    Notwithstanding the above, the requestor should be keenly aware of the following situations.

    If the requestor was a member of the public body corporation, the loan to the for-profit partnership would result in the requestor being in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2).

    Furthermore, the requestor would be in violation of Code Section 25-4-105(1) and (3)(d), cited above, should the requestor as the housing authority's executive director, either individually or through the housing authority or its municipality, use his or her official position to cause or contribute to any action that sanctions, approves or funds, in whole or in part, the construction of the multi-family housing facility located in the other municipality.

    Also, the requestor would be in violation of Code Section 25-4-105(3)(a), cited above, should the requestor's housing authority or its municipality in any way be a party to the contracts to construct and/or fund the multi-family housing facility located in the other municipality.

    In addition, the requestor's use of any non-public information obtained through the public position of executive director of the municipal housing authority that could result in a pecuniary benefit for the requestor, the non-profit corporation, the for-profit corporation or the for-profit partnership would cause the requestor to be in violation of the above cited Code Section 25-4-105(5).
 
 
 
 

Ronald E. Crowe Executive Director