This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 4, 2000, basing its approval solely on the facts and circumstances stated herein.

May a state department employee serve as a corporate officer or member of the board of directors of a nonprofit corporation whose purpose is to promote cooperation between public and private entities regarding the area of responsibility under the jurisdiction of the state department?

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:

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), (g)(v), (h), (l) 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 nonprofit 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.

(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.

(l) '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;

(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) 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."

Pertinent facts and circumstances provided in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of this opinion.

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

The state conflict of interest laws do not as such prohibit the requestor from being an officer or director of the nonprofit corporation.

Notwithstanding the above, the requestor is advised to remain keenly aware of the following.

Code Section 25-4-105(1), cited above, prohibits a public servant from using his official position to obtain a pecuniary benefit for a business with which he is associated.

Code Section 25-4-103(c), cited above, defines a business to include a nonprofit corporation receiving public funds.

Code Section 25-4-103(d), cited above, defines "business with which he is associated" to include a business in which a public servant is an officer or a director.

Therefore, Code Section 25-4-105(1) will prohibit the requestor from using his official position as an employee of the state department to assist the nonprofit corporation in obtain any funding, or other pecuniary benefits, for as long as he remains an officer or a director of the nonprofit corporation.

The requestor can avoid a violation of Code Section 25-4-105(1) by totally and completely recusing himself from any matter under consideration by the state department or any other entity under his supervision and oversight that concerns providing a pecuniary benefit to the nonprofit corporation.

A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during a meeting, but also avoid discussing the subject matter with board members, staff or any other person prior to and after the meeting. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

Also 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. Any minutes of a governing entity's board should state the public servant left the meeting by showing him or her absent for that matter.

The issue presented by the requestor also must be viewed as it relates to Code Section 25-4-101, set forth above. This code section sets the tone for the conflict of interest laws as the Legislature's "Declaration of Public Policy." This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.

Clearly, the requestor serving as an officer or a director of the nonprofit corporation would require him to represent only the state department's interests and not his personal interests. The requestor representing his own personal interest as an officer or a director of the nonprofit corporation is clearly a circumstance that has the potential of creating suspicion among the public and reflecting unfavorably upon the state department. Therefore, such a circumstance should be avoided to comply fully with the public policy mandate set forth in Code Section 25-4-101.
 
 
 
 
 
 

Ronald E. Crowe

Executive Director