May a county supervisor's publishing company:

1. use the county's depository as his publishing company's bank of record;

2. accept from the county economic council advertising business when the county is the council's primary funding source;

3. accept from local commercial land developers advertising business;

4. accept from an architecture firm advertising business when the county's civic center commission has hired the firm;

5. publish, at no cost to the company, a monthly column by a financial consultant that has worked on county bond issues and is likely to again; and

6. use advertising agencies and independent sales agents that are not aware of the county's relationships with the businesses they are selling advertising to for the publishing company?

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), (f)(i)(ii), (g)(i), (h), (k)(i)(ii), (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.

(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:
 
(i) Counties.
 
(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.

(k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:
 

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);
 
(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).
 
(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.

(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 254--105(1), (2) and (3)(a)(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:

(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.

(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."

The Commission formally adopts Advisory Opinion No. 95-081-E in response to this request and by attachment incorporates it into this opinion.

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

Issue 1. The conflict of interest laws do not as such prohibit a county supervisor's business, including a publishing company, from using a bank that is also serving as a county depository.

Issue 2. If the county board of supervisors authorizes funds appropriated to the county economic council, then the supervisor would have a prohibited interest in the economic council's contract with his publishing company in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2). As set forth in the attached Advisory Opinion No. 95-081-E, economic councils, i.e. economic development associations or foundations, are considered under the conflict of interest laws as governmental or quasi-governmental entities. Therefore, a contract with an economic council is considered a governmental contract and by that subject to the prohibitions set forth in Constitutional Section 109 and Code Section 25-4-105(2).

Issue 3. The conflict of interest laws do not as such prohibit a county supervisor's business, including a publishing company, from accepting contracts, including advertising contracts, with commercial land developers.

Issue 4. The conflict of interest laws do not as such prohibit a county supervisor's business, including a publishing company, from accepting contracts, including advertising contracts, with an architecture firm that has contracted with another authority of the county government such as the county's civic center commission.

Issue 5. The conflict of interest laws do not as such prohibit a county supervisor's business, including a publishing company, from allowing a financial consultant to write a monthly column for the company, at no cost to the company, even though the financial consultant has in the past contracted with the county on bond issues and most likely will in the future.

Issue 6. The county supervisor will be responsible and liable for any illegal contract entered into by his publishing company even if the contracts were through his agents. These agents could be advertising agencies and independent sales agents. Therefore, the supervisor should establish a personal review process for each agent's contracts before they are finally approved.

In regard to, Issues 1,2,4, and 5, the requestor is advised to also remain keenly aware of the above cited Code Section 25-4-105(1) and (3) (d) and Code Section 25-4-101.

Code Section 25-4-105(3)(d), cited above, would prohibit the supervisor from influencing any decision that would enhance the supervisor's monthly business publication and by that increase his compensation from the publication. An example would be the supervisor's supporting and influencing other board members to support a business that is seeking a contract, license, permit or tax relief from the board of supervisors when in return the business will purchase ad space in the supervisor's publication.

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 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.

Therefore, the supervisor should recuse himself from any action coming before the board of supervisors concerning a business that is purchasing ad space in his publication.

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 supervisor's publication selling ad space to businesses that are doing business with the county has the potential of creating suspicion among the public and reflecting unfavorably upon the county government.

The requestor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2) and (3)(a). 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.

Ronald E. Crowe Executive Director