This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 12, 1996, basing its approval solely on the facts and circumstances stated herein.
May a state university professor serve on a state commission that awards grants to a research facility that is under the administrative control of the state university?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 entities' 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 25-4-101 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."
(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:
(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.(m) 'Person' means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.
(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(2), (3)(a), (4)(h) and (5) states:
"(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:
(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."(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.
Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
In the summer of 1994, I was appointed by the Governor to a State Commission which oversees a State Agency. Since that time, I have completed the Statement of Economic Interest and Conflict of Interest forms to the best of my ability and, to date, no problems have been noted by the Commission. However, in the interest of avoiding problems in the future and in hopes of allaying my fears, I would appreciate receiving an official opinion from the Ethics Commission regarding my situation as described below.
My fulltime employment is with a State University as an Associate Professor. This position is funded for nine months of the year through State budget funds and the remaining three (summer) months through Federal research grants and contracts. My position is with the State University's Center located at a Federal Complex, where we teach classes and perform our research and administrative functions.
Several years ago, the Research Facility, located in the same area of the State as the Federal Complex, was placed under the administrative control of the State University and it is this association which concerns me. The State Commission routinely approves the awarding of grants and contracts to the Research Facility for studies on natural resource matters for use in management decision making. While both the Research Facility and the State University are non-profit in nature and are analogous to State agencies, and even though I receive no direct benefit from the State Agency contracts, it is my concern that there might be a perceived conflict of interest between my service on the State Commission and my position at the State University. I would greatly appreciate you reviewing this information and providing an official ruling on this matter so that I can act accordingly.In addition to the above facts, the Commission's staff obtained the following information. The Research Facility is created by state statute which provides that it is a body politic and corporate with perpetual succession. It has among its powers the authority to contract, to acquire property and
establish its own rules and regulations. However, the state statute does provide that it is under the control and supervision of the board of trustees of the Institution of Higher Learning [IHL]. Also, an IHL representative has advised the Commission's staff that the Research Facility has a separate line item appropriation and is considered a separate entity under IHL, although the State University does provide it some administrative services.
The Commission formally adopts Advisory Opinions No.95-1 10-E and No. 95-148-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.
As a member of the State Commission, the requestor may not have an interest, direct or indirect, in a contract authorized by the State Commission as Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit it.
However, contracts between governmental entities, such as the grants from the State Commission to the Research Facility, do not necessarily result in a violation of Constitutional Section 109 and Code Section 25-4-105(2), even though an individual simultaneously may serve as a board member of one and may have an indirect employment relationship with the other.
As set forth in Advisory Opinion No.95-110-E, this finding is based on the contractual interests, if any, being public in nature rather than private. The conflict of interest laws are applicable to competing private interests, not the competing interest of governmental entities.
Therefore, Constitutional Section 109 and Code Section 25-4-105(2) do not prohibit the requestor's service on the State Commission which is awarding grants to the Research Facility if he does not personally benefit, directly or indirectly, from the grants.
The requestor also is not in violation of the above cited Code Section 25-4-105(3)(a). To violate this code section, the requestor must have an individual contract with the State Commission or the State University other than his contract of employment, or must have a material financial interest in a business that is contracting with these governmental entities.
There are no individual contracts between the requestor and these governmental entities other than his contracts of employment. Therefore, the only question to consider is whether he has a material financial interest in a business that is contracting with either governmental entity.
In Advisory Opinion No. 95-148-E, this Commission opined that a State University is not a "business" as defined in the above cited Code Section 25-4-103(c). This finding holds true for other governmental entities, such as the State Commission and the Research Facility. Therefore, there are no businesses involved for the requestor to have any material financial interests in.
Notwithstanding the above, the requestor must remain keenly aware of the above cited Code Section 25-4-105(5).
Code Section 25-4-105(5) prohibits a public servant from using or disclosing non-public information gained through his or her official position or public employment that could result in a pecuniary benefit to the public servant, any relative or other person. A person within the definition set forth in the above cited Code Section 25-4-103(m) can be a governmental entity, such as the State University and the Research Facility.
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, an individual's service on a state commission
while employed by a state university, especially where grants are involved,
has the potential of creating suspicion among the public and reflecting
unfavorably upon the state commission and the state university.
Ronald B. Crowe Executive Director