This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on April 3, 1998, basing its approval solely on the facts and circumstances stated herein.

May a member of the Mississippi Legislature participate with a group that contracts with a regional correctional facility, jointly operated by certain counties, to provide collect telephone call services to inmates when the Mississippi Department of Corrections is contracting with these counties' boards of supervisors to house state inmates?

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 entity's internal rules and regulations.

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)(i)(v), (h) and (p)(i)(ii)(iii) 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; 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.

(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 (2) states:

"(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 provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.

I am presently a member of the Mississippi Legislature. I am making an inquiry as to me being involved with a group that specializes in establishing phones in correctional facilities in the state of Mississippi.

My specific inquiry is can I participate if this group does business with a regional correctional facility which houses state inmates. The Mississippi Department of Corrections contracts with the respective counties where these facilities are located to house (take care) these inmates for a daily fee. These facilities are built by general obligation bonds issued by the various counties.

The process is that the inmates make collect calls to relatives, friends and etc. The proceeds come from the individuals who accept the calls from the inmates.

In addition to the above facts, the requestor advised that the regional correctional facility addressed in the request letter is one of the regional correctional facilities authorized by Section 47-5-931 (2), 1972 Mississippi Code Annotated. ⁽¹⁾
 
 

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

Constitutional Section 109 and Code Section 25-4-105 (2), both cited above, prohibit a legislator during his term or for one year thereafter from being interested, directly or indirectly, in any contract authorized or funded by the Legislature of which the legislator is or was a member. ⁽²⁾

In this instance, the Legislature, during the requestor's term, passed Chapter 457 during the 1997 legislative session establishing the county owned or leased regional correctional facilities which required the Department of Corrections to contract with said facilities to house state inmates. Also, the Legislature appropriates the funding to the Department of Corrections necessary for the Department to contract with the regional correctional facilities to house the state inmates.

Both the passage of Chapter 457 and the Department of Corrections' appropriation bills bring the group's collect telephone contract with the regional correctional facility squarely within the prohibition set forth in Constitutional 109 and Code Section 25-4-105 (2) should the requestor become interested in the contract.

The group would not have its contract with the regional correctional facility had the State Legislature not authorized the establishment of the facilities and mandated that the Department of Corrections contract with the facilities.

The regional correctional facility's contracts, including its contract with the group, are clearly dependent on the funding the Department of Corrections receives from the Legislature to pay the facility for the housing of the state inmates.

Therefore, Constitutional Section 109 and Code Section 25-4-105 (2) prohibit the requestor from being involved and participating with the group when the group is or will be contracting with county owned or leased correctional facilities, as authorized in Code Section 47-5-931 (2), to provide collect telephone services to inmates.

The requestor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105 (2). Even without a legislator's vote, the passage of the authorizing law by the State Legislature nonetheless results in a contract in which a legislator has a prohibited interest.
 
 

Ronald E. Crowe

Executive Director

1. § 47-5-931. Authorization for incarceration of state offenders at county or regional correctional facility.

(1) The Department of Corrections, in its discretion, may contract with the board of supervisors of one or more counties and/or with a regional facility jointly operated by two (2) or three (3) counties, to provide for housing, care and control of not more than two hundred fifty (250) offenders who are in the custody of the State of Mississippi. Any facility owned or leased by a county or counties for this purpose shall be designed, constructed, operated and maintained in accordance with American Correctional Association standards, and shall comply with all constitutional standards of the United States and the State of Mississippi, and with all court orders that may now or hereinafter be applicable to the facility. If the Department of Corrections contracts with more than one (1) county to house state offenders in county correctional facilities, excluding a regional facility, then the first of such facilities shall be constructed in Sharkey County and the second of such facilities shall be constructed in Jefferson County.

(2) The Department of Corrections shall contract with the boards of supervisors of the following counties to house state inmates in regional facilities: (a) Marion and Walthall Counties; (b) Carroll and Montgomery Counties; (c) Stone and Pearl River Counties; (d) Winston and Choctaw Counties; (e) Kemper and Noxubee Counties; (f) Holmes County and any contiguous county in which there is located an unapproved jail; and (g) Bolivar County and any contiguous county in which there is located an unapproved jail. The Department of Corrections shall decide the order of priority of the counties listed in this subsection with which it will contract for the housing of state inmates. For the purposes of this subsection the term "unapproved jail" means any jail that the local grand jury determines should be condemned or has found to be of substandard condition or in need of substantial repair or reconstruction.

SOURCES: Laws, 1995, ch. 585, § 1; 1997, ch. 457, § 1, eff from and after passage (approved March 25, 1997).

HISTORICAL NOTES

AMENDMENT NOTE--

The 1997 amendment redesignated the existing paragraph as subsection (1) and added subsection (2).

2. An appropriation bill funding programs that allow payments under contracts in which legislators are interested are 'laws authorizing the contracts'. See Frazier v. State , 504 So. 2d

675 (1987) and Cassibry v. State , 404 So. 2d 1360 (1981).