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 the employees of a business which is owned by a member of a community college board of trustees of another community college district, be trained by the community college district in which the business is located?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 25-4-101 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)(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 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.
(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.
(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 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 25-4-105(1), (2) 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.
(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 in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of this opinion.
The Commission formally adopts Advisory Opinions No. 96-094-E, No.94-153-E and No. 94-078-E in partial response to this request and by attachment incorporates them into this opinion.
Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
As set forth in the attached opinions, any decision made by the trustee's board to allow a portion of its funding to be used, either by it or another college district, for the purpose of providing training services to the trustee's business results in a violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2). Constitutional Section 109 and Code Section 25-4- 105(2) prohibit a trustee of a college from having an interest in a contract authorized by the board of which he is a member.
Also, the attached opinions provide that should the funding of the training services to the trustee's business not involve approval by the trustee's local college district, but comes from funds provided by other authorities acting in conjunction with other local college districts, still conflict of interest questions arise under the above cited Code Sections 25-4-101 and 25-4-105(1) and (5).
The requestor is cautioned to advise the community college board of trustee member to closely study the attached opinions as they discuss in detail the application of the above referenced sections of the conflict of interest laws to the type issue presented here by the requestor.
Ronald B. Crowe Executive Director