1. accept discounts from suppliers, builders and developers who do not provide supplies or perform work for the county or receive any type of approval from the board of supervisors;
2. use electricians, plumbers and air-condition installers licensed by the county;
3. use an engineer that may appear before the board of supervisors in support of a subdivision approval;
4. accept a builders' discounts from a developer that may appear before the board of supervisors for approval of a subdivision?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:
"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(f)(i)(ii), (g)(i), (h), (1) and (p)(i) states:
(i) Any agreement to which the government is a party;
or
(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." Code Section 25-4-105(1), (2) and (3)(d) 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:
Pertinent facts and circumstances in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of this opinion.(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."
Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
First, the consideration by governmental boards of subdivision approvals, building and business permit issuance's, and zoning variances is normal business related to government regulations and does not constitute government contracts.
Therefore, none of the issues set forth above would result in the supervisor having a direct or indirect interest in a contract authorized by his board in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2). However, a county supervisors acceptance of discounts from suppliers, builders or developers that contract with his county would result in the supervisor having a direct or indirect interest in the contract with his county in violation of Constitutional Section 109 and Code Section 25-4-105(2).
The supervisor is advised 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 board member's vote, the authorization by the member's board nonetheless results in a contract in which the board member has a prohibited interest.
Issue 1. The conflict of interest laws do not prohibit a county supervisor from accepting discounts from suppliers, builders and developers who do not provide supplies or perform work for the county or receive any type of approval from the board of supervisors.
Issue 2. The conflict of interest laws do not prohibit a county supervisor from personally
contracting with electricians, plumbers and air-condition installers licensed by the county.
Issue 3. The conflict of interest laws do not as such prohibit a county supervisor from personally employing an engineer that may appear before the board of supervisors in support of a subdivision approval
Issue 4. The conflict of interest laws do not as such prohibit a county supervisor from accepting builders' discounts from a developer that may appear before the board of supervisors for approval of a subdivision.
Notwithstanding the above, the supervisor must remain keenly aware of the above cited Code Section 25-4-101 and Code Section 25-4-105(1) in regard to Issue 3 and Issue 4.
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.
To avoid violating Code Section 25-4-105(1) by 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.
Al so 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, including those in Issue 1.
Therefore, the supervisor should recuse himself from any action coming before the board of supervisors concerning a supplier, a builder, a developer or an engineer from whom he is receiving discounts for his personal benefit.
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 county supervisor receiving personal discounts
from a developer or an engineer that is coming before the board of supervisors
for approval of a subdivision has the potential of creating suspicion among
the public and reflecting unfavorably upon the county. Therefore, the supervisor
should recuse himself from that action.
Ronald E. Crowe Executive Director