This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 4, 2001, basing its approval solely on the facts and circumstances stated herein.

May an employee of a regional housing authority serve as the town's mayor if elected?

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 25-4-101 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(a), (g)(ii)(v), (h), (l) and (p)(i)(ii)(iii) states:

"(a) 'Authority' means any component unit of a governmental entity.

(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(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.

(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) 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."

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

The Election Commissioners for the Town want a written confirmation on a person who works for the Mississippi Regional Housing Authority who is running for the office of Mayor. We want to be sure his job and the Mayor's position is not a conflict of interest. Whereby, the Town could receive a grant from HUD.

The Election Commission wants it confirmed in writing that there is no conflict of interest.

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

It is not as such a violation of the state conflict of interest laws for an employee of a regional housing authority to serve as the town's mayor. This is with the understanding that the regional housing authority receives no funding of any kind or no additional bond issuing authority from the mayor and board of aldermen during the authority employee's term and for one year thereafter. Such funding would result in the authority employee as mayor having a prohibited interest by way of his employment contract with the regional housing authority in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2).

In addition, the requestors are advised that another circumstance can exist that would cause a violation of Constitutional Section 109 and Code Section 25-4-105(2) should a board member of one governmental entity be employed by a separate governmental entity.

Such a circumstance involves the existence of contracts between the two governmental entities in which the public servant would have an inherent interest and/or a private pecuniary benefit.

Constitutional Section 109 and Code Section 25-4-105(2) would prohibit a mayor from directly or indirectly having an inherent interest and/or receiving a pecuniary benefit from his municipality or his regional housing authority employer as a result of any contracts existing between the two governmental entities.

The requestors are cautioned to advise the candidate for mayor 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 board member's vote, the authorization by the member's board nonetheless results in a contract in which the board member has a prohibited interest.

Notwithstanding the above, Code Section 25-4-101 and Code Section 25-4-105(1), both cited above, raise potential concerns for a mayor employed by a regional housing authority.

Code Section 25-4-101 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, a mayor participating in matters before the mayor and board of aldermen concerning a regional housing authority employing the mayor can be expected to raise suspicion among the public and reflect unfavorably upon the town and the regional housing authority.

Code Section 25-4-105(1) prohibits a mayor from using his position to obtain a pecuniary benefit for himself.

Therefore, a mayor who is an employee of a regional housing authority is advised to totally and completely recuse himself from matters involving the regional housing authority in order to comply with the public policy set forth in Code Section 25-4-101 and to avoid a potential violation of Code Section 25-4-105(1).

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. An abstention is a vote with the majority of the governing entity's board and therefore does not qualify as a recusal.

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. 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.

Again, the requestors are cautioned to advise the candidate for mayor that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2).
 

Ronald E. Crowe

Executive Director