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 March 1, 1996.

May a legislator accept employment as the executive director for a county tourism commission when it will be partially funded by matching funds from a State Fund?

    Your opinion request to the Office of the Attorney General dated February 18, 1996, was referred by that Office to the Mississippi Ethics Commission on February 21, 1996, as your request involves the above issue that concerns the Mississippi conflict of interest laws.

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

"(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; 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."

    Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.

I am a member of the State Legislature. I would like a written opinion on an ethical question. The County is going to start a tourism commission to promote tourism in our area. I am considering applying for the Executive Directorship position. Funding will be provided to the project from the county, local municipalities, local businesses and matching funds from a State Fund.

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

    As a state legislator, your acceptance of employment as the executive director of a county tourism commission is not as such prohibited by the conflict of interest laws.

    However, your acceptance of the executive director position with the county tourism commission would be in violation of Constitutional Section 109 and Code Section 25-4-105(2), both cited above, if the county tourism commission is funded, in whole or in part, through an appropriation by the State Legislature during your term of office or for one (1) year thereafter.

    The county tourism commission's employment of a state legislator while receiving state or federal funds authorized by the State Legislature results in the state legislator/employee having an interest in a governmental contract in violation of Constitutional Section 109 and Code Section 25-4- 105(2).

    The Mississippi Supreme Court held in both, Cassibry v. State, 404 So.2d 1360 (Miss. 1981, and Frazier v. State, 504 So.2d 675 (Miss. 1987), that passage of appropriation bills authorizing expenditures for state agencies or other public entities are necessary before the state agencies or other public entities can obligate the State and therefore are authorizations subject to Constitutional Section 109.

    The above violation cannot be avoided by not voting as neither a recusal nor an abstention prevents a violation of Constitutional Section 109 and Code Section 25-4-105(2). Even without a state legislator's vote, the authorization by the State Legislature nonetheless results in a contract in which the state legislator has a prohibited interest.

    In addition to the above, the requestor's introduction of; promotion of or vote on any legislation that allowed the establishment of the county tourism commission could result in a violation of the above cited Code Section 25-4-105(1).

    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 in violation of Code Section 25-4-105(1), 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.
 

Ronald E. Crowe Executive Director