Are the Mississippi Ethics in Government laws violated should a senior citizen daycare center receive medicaid and medicare reimbursements:
 
1. when a Legislator has an ownership interest in the senior daycare center;
 
2. when a Legislator is an employee of the senior daycare center;

3. when the spouse of a Legislator has an ownership interest in the senior daycare center; and

4. when the spouse of a Legislator is an employee of the senior daycare center?

    Pertinent facts and circumstances provided by the requestor, absent identifying data are set forth as follows and considered part of this opinion.

This is a follow up of my telephone conversation with your office regarding my spouse or I having ownership in a senior daycare center and my spouse being an employee of a senior daycare center.

Advisory Opinion No. 94-148-E
December 2, 1994
Page 2

I have a question of ownership interest because senior daycare is an eligible medicaid and medicare reimbursement. However, there also may be a conflict with either me or my spouse being employed by a senior daycare that receives medicaid reimbursement.

    The Commission formally adopts Advisory Opinions Nos. 93- 07~-E and 93-106-E in response to the requestor's inquiry and by attachment incorporates them into this opinion.

    ISSUE 1 . In response to whether a Legislator having an ownership interest in a service provider business such as a senior citizen daycare center receiving Medicaid revenues violates the conflict of interest laws, the Commission refers the requestor to the attached Advisory Opinion No. 93-076-E.

    This Commission stated in Advisory Opinion No. 93-076-E, "If the Home health agency, a private not-for-profit corporation] received any Medicaid funds or other funds which are authorized by the Legislature, the Legislator [acting as a consultant to the HHA] would have an interest in a governmental contract (HHA's Medicaid Provider Contract) authorized (Medicaid appropriation) by the Legislature of which he is a member in violation of Constitutional Section 109 and Code Section 25-4-105 (2)."

    The Commission finds an ownership interest in a senior citizen daycare center is equally as prohibited an interest, if not more so, as the consultant contract addressed in Advisory Opinion 93-076-E.

    Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is the Legislator's ownership interest in the senior citizen daycare center which receives Medicaid payments results in a prohibited interest in violation of the above cited Constitutional SectIon 109 and Code Section 25-4-105 (2).

    ISSUE 2 . Regarding whether a Legislator having an employment contract with a service provider business such as a senior citizen daycare center receiving Medicaid revenues violates the conflict of interest laws, the requestor again is referred to the attached Advisory Opinion No. 93-076-E.
 

Advisory Opinion No. 94-148-E
December 2, 1994
Page 3

    The Commission finds that the similarity between the employment contract at issue in this opinion and the consultant contact at issue in Advisory Opinion No. 93-076-E can not be denied. The prohibited interest in a government contract resulting from the consultant contract at issue in Advisory Opinion No. 93-076-E would also result from the employment contract under consideration in this opinion.

    Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is the Legislator's employment contract with a senior citizen daycare center which receives Medicaid payments results in a prohibited interest in violation of the above cited Constitutional Section 109 and Code Section 25-4-105 (2).

    ISSUE 3 . The Commission refers the requestor to the attached Advisory Opinion No. 93-106-E regarding the issue of a Legislator's spouse having an ownership interest in a service provider business receiving Medicaid revenues.

    This Commission stated in Advisory Opinion No. 93-106-E, "The Commission differentiates between the contract of employment on the part of a spouse of a Legislator as a member of a large class ( Frazier ) and a contract for goods or services between a department of the state and the spouse of the Legislator. The latter category is a contract not of the employment nature allowed by the Court."

    The Commission finds a Legislator's spouse having an ownership interest in a senior citizen daycare center must be differentiated from an employment contact with a Legislator's spouse. Clearly, an ownership interest in a business contracting to provide services is no more of an employment nature than an individual contract to provide services as set forth in Advisory Opinion No. 93-106-E.

    The income from the spouse's daycare business would accrue to the Legislator just as the income from a sale of realty as determined in Advisory Opinion No. 93-106-E.

    Based solely from the facts and circumstances provided by the requestor, the Commission's opinion is the Legislator's spouse having an ownership interest in a senior citizen daycare center which receives Medicaid payments results in a prohibited interest in violation of the above cited Constitutional Section 109 and Code Section 25-4-105 (2).

    ISSUE 4 . The Commission again refers the requestor to the attached Advisory Opinion No. 93-106-E in regard to the issue of a Legislator's spouse being employed by a service provider business receiving Medicaid revenues.
 

Advisory Opinion No. 94-148-E
December 2, 1994
Page 4

    As stated in Advisory Opinion 93-106-E, the State Supreme Court in Frazier v. State , 504 So.2d 675 (Miss 1987) , held, a Legislator's spouse, who was also a school teacher, was a member of a large class of several thousand school teachers and concluded that "... [Section] 109 was never intended to prohibit any individual from serving in the Legislature and voting on general public school laws simply because his or her spouse is employed as a public school teacher in this state."

    The Commission concludes that the class of employees of medicaid service providers not only qualifies as "a large class" under Frazier but, in fact, is more removed from legislative influence than the class of school teachers addressed in Frazier .

    Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is the employment contract of a Legislator's spouse wIth a senior citizen daycare center which receives Medicaid payments does not violate Constitutional Section 109 and Code SectIon 25-4-105 (2), cited above.

    The Commission cautions the requestor to not use his or her official position to obtain pecuniary benefit for his or her spouse in violation of the above cited Code Section 25-4-105 (1). A public servant must keep the performance of his or her official duties entirely separate and distinct from any private interest.

    In order for the private interest to remain separate and distinct, the public servant must recuse himself or herself from discussing or acting on any subject matter in which his or her spouse might receive a pecuniary benefit.

    A proper recusal would occur when the public servant totally removes himself or herself from the pertinent matter by not officially or unofficially taking part or action regarding the subject matter and should leave the room or area where such discussions, considerations and/or actions take place. The minutes of the governing body should state that the public servant left the meeting by showing him or her absent for that matter.
 
                                                                Ronald E. Crowe
                                                                Executive Director