This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 12, 1996, basing its approval solely on the facts and circumstances stated herein.

May a state legislator apply for and receive financial aid in the form of student loans or grants?

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)(v), (h), (1), (o) and (p)(i) 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:

(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.

(o) 'Public funds' means money belonging to the government.

(p) 'Public servant' means:

(i) Any elected or appointed official of the government."

Code Section 25-4-105(1), (2) and (3)(a) 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."

I would like to know which kind of financial student loans and or grants I cannot apply for as I am a member of the House of Representatives.

A representative of the Institutions of Higher Learning (IHL) has advised the Commission's staff that certain finds for student loans or grants are authorized through the legislative appropriation process and certain others are not. In addition, the The representative also advised that there is "institutional-based money" available for student assistance. These finds are private finds available directly through a state university and they are not part of the legislative appropriation process. The IHL representative also advised that the State Student Financial Aid Programs Source Book includes the student loan and grant programs that are funded with state monies through the Legislature's appropriation process. The one exception being the "Special Medical Education Loan/Scholarship Program" which is privately funded. This publication, as well as information on all student loan or grant programs, is available through the IHL.

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

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 is necessary before the state agencies or other public entities can obligate the State and therefore are authorizations subject to Constitutional Section
109.

Therefore, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a state legislator from personally benefiting from a student loan or grant if the associated finds were authorized for expenditure or if there was a law passed authorizing the program by the Legislature during the member's term or for one year thereafter.

Federally funded or privately funded student loan or grant programs are available to a legislator if the finding was not authorized or if there was no enabling law passed by the Legislature during the member's term or for one year thereafter. However, Code Section 25-4-1 05(3)(a), cited above, may in some instances prohibit a legislator from participating in federally funded or privately funded student loan or grant programs.

Code Section 25-4-105(3)(a) would prohibit the legislator from participating in federally funded or privately funded student loan or grant programs when the legislator is required to contract with state agencies or state universities or where the legislator's loan is with the state university. Examples of these two prohibited circumstances could arise respectively in the Federal Work-Study

(FWS) Program and the Federal Perkins Loan Program.

Notwithstanding the above, the requestor is advised to be keenly aware of the above cited Code Section 25-4-105(1). This is especially true if the legislator is seeking a federally funded or privately funded student loan or grant program administered by the lHL or a state university.

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.

Ronald E. Crowe Executive Director