This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on June 7, 1996, basing its approval solely on the facts and circumstances stated herein.

May a retail awards company solely owned by a county supervisor sell trophies and other award items to the county school district?

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 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:

(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) Ml 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) 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."

This law firm represents the County Board of Supervisors. This Opinion request is written concerning an elected supervisor who was sworn in and took office on January 1, 1996. This supervisor is the sole proprietor of a company which is a retail awards company that sells to governmental entities on occasion, i.e., federal government, county government, state government, and city government.

The county supervisor involved has done business in the past with the County school district. The County school system is a separate entity which is governed by elected board. The county school system sets its own budget and mileage and only gives approval to sixteenth section land leases. I think it's a matter of statute these sixteenth section leases are presented to the board for approval but must be approved only after the County school board has approved the sixteenth section land lease.

The specific question we would ask is:

Can Supervisor X who is an elected member of the County Board of Supervisors and is also a sole proprietor of a retail awards company which sells trophies and other award items to the County school system?

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

As set forth in the attached opinions, a county supervisor would not be prohibited from contracting with a governmental entity other than the county which he or she serves. Therefore, a county supervisor or the supervisor's business may contract with any "government or "governmental entity," as defined in the above cited Code Section 25-4-103(g) and (h), as long as his or her own county is not involved in the authorization or funding of the other governmental entity's contract. A school district is a "government" as defined by Code Section 25-4- 103(g)(iii).

Notwithstanding the above, the supervisor and/or the supervisor 5 awards company would be prohibited by Constitutional Section 109 and Code Section 25-4-105(2), cited above, from contracting with the county he serves as supervisor and from contracting with any entity, public or private, if such contract is authorized or funded, in whole or in part, by the county he serves as supervisor.

The requestor is cautioned to advise the supervisor that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2). Even without the requestor's vote, the authorization by the requestor's board nonetheless results in a contract in which the requestor has a prohibited interest.

A supervisor is prohibited from having an interest in contracts authorized by his or her county during his or her term or for one (1) year after the expiration of such term.

Code Section 25-4-105(1), cited above, 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 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.

In order to avoid violating Code Section 25-4-105(1), the supervisor should recuse himself from matters coming before the board of supervisors concerning the school district, or other public or private entities, with which his awards company contracts.

Ronald E. Crowe Executive Director