This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 3, 1996, basing its approval solely on the facts and circumstances stated herein.

May a legislator serve concerned as a corporate counsel/government relations specialist/registered lobbyist for a corporation doing business in the State of Mississippi?

    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 entity's internal rules and regulations.

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 25-4-101 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."

Code Section 25-4-103(c), (d), (e), (f)(i)(ii), (g)(v), (h), (1), (m) 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 tends.

(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.

(e) 'Compensation' mean money or thing of value received, or to be received, from any person for services rendered.

(1) '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:

(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 tends.

(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.

(I) '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 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 finds; or

(iii) Any individual who receives a salary, per diem or expenses paid in whole or in part out of finds authorized to be expended by the government."

Code Section 25-4-105(1), (2), (3)(d) 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:

(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.

(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.

Can a member of the Legislature also serve concurrently as a corporate counsel/government relations specialist/registered lobbyist for a corporation doing business in the State of Mississippi?

If so, what are the limitations or avoidance of conflict of interest requirements placed upon the legislator/lobbyist? For example, with respect to an issue that the legislator/lobbyist desires to take an active role in lobbying the Legislature for enactment or seeking to avoid enactment, what actions must the legislator/lobbyist take to declare the conflict of interest, allow him to lobby and avoid violating any ethics rule?

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

    Regardless of a legislator's employment position with a corporation, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a legislator from being interested, directly or indirectly, in a contract authorized by the Legislature between the State and the corporation during the legislator's term or for one year thereafter.

    In Cassibry v. State, 404 So.2d 1360 (Miss. 1981) and Frazier v. State ex rel Pitttnan, 504 So.2d 675 (Miss. 1987), the Mississippi Supreme Court addressed the issue of a Legislative appropriation bill authorizing a contract with the State and/or its agencies.

    In Cassibry, the Mississippi Supreme Court established that an appropriation bill authorizing the expenditures of a state agency was necessary before the state agency had authority to obligate the State to make payments of money, and therefore "authorized" the contract.

    The Mississippi Supreme Court in Frazier stated, "The governmental bodies contracting with these [legislator] defendants could not have made payment under the contracts without these appropriations. These appropriation bills were law [Cassibry]. They were laws passed while these gentlemen served in the Legislature. Their contracts were made while they were in the Legislature.

    Thus, they squarely fit the prohibition of Constitutional Section 109."

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

    If there are no contracts between the State and the corporation employing the legislator, the legislator must remain keenly aware of the above cited Code Section 25-4-105(1), (3)(d) and (5).

    A legislator who is a registered lobbyist immediately must face conflict of interest questions because of the prohibition set forth in Code Section 25-4-105(3)(d).

    Code Section 25-4-1 05(3)(d) clearly prohibits a sitting legislator from performing services for compensation from a business to influence a decision of the Legislature.

    In the Lobbying Law Reform Act of 1994, Code Section 5-8-3, 1972 Mississippi Code Annotated, defines the following terms:
 

"(k) 'Lobbying' means:

(i) Influencing or attempting to influence legislative or executive action through oral or written communication; or

(ii) Solicitation of others to influence legislative or executive action; or

(iii) Paying or promising to pay anything of value directly or indirectly related to legislative or executive action.

(1) 'Lobbyist' means:

(i) An individual who is employed and receives payments, or who contracts for economic consideration, including reimbursement for reasonable travel and living expenses, for the purpose of lobbying;"

    By definition of "Lobbying" and "Lobbyist" in our State's law, a sitting legislator cannot be a registered lobbyist and perform the duties for which he or she is compensated without violating Code Section 25-4-105(3)(d).

    A legislator employed by a corporation, regardless of the position(s) of employment, may not use his official position as a member of the Legislature to obtain a pecuniary benefit for himself or the corporation when it is a business with which he is associated as defined in the above cited Code Section 25-4-103(d). A legislator's use of his or her official position in this manner is prohibited by Code Section 25-4-105(1).

    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.

    Notwithstanding the above, it is not the Commission's contention that a legislator cannot be involved in the legislative process simply because a bill may address matters in which his or her employer is interested. Legislators are not as such prohibited by the conflict of interest laws from advocating or voting for legislation that equally affects, both theoretically and practically, everyone within the legislator's employer's industry.

    Code Section 25-4-105(5) prohibits a public servant from using or disclosing non-public information gained through his or her official position that could result in a pecuniary benefit to the public servant, any relative or any other person. A person within the definition set forth in Code Section 25-4-103(m), cited above, can be a corporation.

    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, a legislator being employed by a corporation to perform lobbying duties has the potential of creating suspicion among the public and reflecting unfavorably upon the state government and therefore should be avoided.
 

Ronald E. Crowe Executive Director