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 7, 2001, basing its approval solely on the facts and circumstances stated herein.

May a city council member be a payee from the city housing authority of a payment under the Section 8 Housing Voucher Program administered through the city housing authority?

Your opinion request to the Office of the Attorney General dated July 31, 2001, was referred by that Office to the Mississippi Ethics Commission on August 2, 2001, as your request involves the above issue that concern the Mississippi conflict of interest laws.

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(a), (g)(i)(v), (h) 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:

(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."

Pertinent facts and circumstances 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.

Although the requestor's specific question concerned whether the city council member would be prohibited from voting on matters involving the city housing authority as a payee under a tenant's Section 8 qualification, it is the Commission's opinion that not voting is insufficient to avoid violating the public policy mandate set forth in Code Section 25-4-101, cited above.

Code Section 25-4-101sets 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 city council member being a payee from the city housing authority of a payment under the Section 8 Housing Voucher Program administered through the city housing authority is a circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the city and the city housing authority. Therefore, the city council member should avoid participation as a landlord in the Section 8 Housing Voucher Program administered through the city housing authority in order to fully and completely comply with the public policy mandate set forth in Code Section 25-4-101.

This finding is based on the city housing authority being an instrumentality of the city [§43-33-5, 1972 MCA]; the city housing authority's board members' appointments requiring confirmation by the city council [§43-33-7, 1972 MCA]; the authority of the city to enter into agreements with the housing authority and to furnish services and assistance to the city housing authority [§43-33-43, 1972 MCA]; and, the city governing authority's power to donate or lend funds to the city housing authority [§43-33-47, 1972 MCA].

Also, the Commission's finding is based on the fact that public housing authorities [PHA] are required to enter into an Annual Contributions Contract [ACC] with the Department of Housing and Urban Development [HUD] which contains a conflict of interest section.

The standard ACC's conflict of interest section prohibits a PHA, such as the city housing authority, from entering into any contract, subcontract, or other arrangement in connection with contract administration under the ACC in which any covered individual has any direct or indirect interest. The ACC definition of a covered individual includes a member, officer or director of such governmental body of which the PHA is an instrumentality. [Emphasis added to bold text]

In this instance, the landlord is a member of the city council which is the governmental body of which the city housing authority is an instrumentality thus appearing to directly run afoul of the standard ACC conflict of interest section discussed above.

Ronald E. Crowe

Executive Director