This Advisory Opinion concerns the following issues 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.
1. May a state legislator's design firm contract with a school district to perform preliminary studies for the construction of a field house to be funded by sixteenth section revenues?
2. May a state legislator's design firm continue a contract with a school district when the construction will be funded by ad valorem taxes and EFC funds which are available on August 25, 1995?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 entities' 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 25-4-103(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.
(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.
(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) 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 in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of this opinion.
Fõ A representative of the State Department of Education has advised the Commission's staff that EFC funds were originally Educational Finance Commission funds derived from state bonds. However, they are now referred to as state public school building funds. These monies are in the state treasury as a special fund known as the "state public school building fund" and the fund number is 3933. [See Code Sections 3747-1, et seq.] The monies in fund number 3933 are derived from state sales taxes. [See Code Section 27-65-75(5)] The State Department of Education representative further advised that fund number 3933 is a non-appropriated funds.
The Commission formally adopts Advisory Opinion No. 87-17-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.
The Mississippi Supreme Court held in both, Cassibryv.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.
Issue 1. Constitutional Section 109 and Code Section 25-4-105(2) would not prohibit a legislator's design firm from contracting with a school district to construct a field house funded with sixteenth section land funds. This is with the understanding that no general legislation was passed by the Legislature during the legislator's term to allow sixteenth section funds to be used for this purpose.
Issue 2. Constitutional Section 109 and Code Section 25-4-105(2) would not prohibit a legislator's design firm from contracting with a school district to continue with a construction project that is funded by local ad valorem taxes and fund number 3933 funds. This is with the understanding that no general legislation was passed by the Legislature during the legislator's term effecting the use of the revenues from the local ad valorem taxes or fund number 3933.
Regarding fund number 3933 funds, Constitutional Section 109 and Code Section 25-4-105(2) would prohibit a legislator's design firm from contracting with a school district to continue with a construction project that is funded by these funds if they were appropriated or reappropriated by the Legislature during the legislator's term or if the statutes governing fund number 3933 were changed or re-enacted by the Legislature during the legislator's term.
Notwithstanding the above, the requestor is advised to be keenly aware 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.
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