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's company make sales directly to local governments and/or to contractors of local governments?

The pertinent conflicts 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)(i)(ii)(v), (h), (1) 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:

(i) Counties;

(ii) Municipalities; and

(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.

(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."

In addition to serving in the Mississippi Legislature, I own a company. My company is a manufacturers' rep business which makes the majority of its sales to contractors who have successfully bid on construction projects. Some of the projects are privately funded. Others are funded by local government.

As stated, most sales are to contractors, but occasionally a municipality will receive direct bids on equipment. On these rare occasions my company would sell directly to the municipality.

It is my understanding that this arrangement in no way violates Section 109 of the Constitution of the State of Mississippi. I would appreciate an opinion from the Ethics Commission which confirms this understanding.

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, a legislator's company is not as such prohibited by the conflict of interest laws from contracting to sell goods or services to local governments when said goods or services are to be purchased with local funds or from selling to local government contractors.

Notwithstanding the above, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, would prohibit a legislator's company from making the above sales when the goods or services are to be paid for with funds appropriated by the Legislature during the legislator's term or within one year thereafter or when the local governments' authority to enter into such contracts were authorized by general or special laws passed by the Legislature during the legislator's term or within one year thereafter.

The requestor also is advised to remain 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.

In order 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.

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) because neither removes the prohibited interest in a contract authorized by the Legislature by virtue of the appropriation or legislative processes.

Ronald E. Crowe Executive Director