February 1, 2002
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 1, 2002, basing its approval solely on the facts and circumstances stated herein.
May a legislator’s spouse who is employed by a medical center accept an appointment by a county board of supervisors to a regional mental health commission?
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(b),
(c), (d), (e), (f)(i)(ii), (g)(i)(ii)(v), (h), (i), (k)(i)(ii), (l), (o),
(p)(i)(ii)(iii) and (q) states:
“(b) “Benefit” means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.(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.
(e) “Compensation” mean money or thing of value received, or to be received, from any person for services rendered.
(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;(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.
(i) “Income” means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.
(k) “Material financial interest” means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:
(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).
(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.(o) “Public funds” means money belonging to the government.
(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.
(q) “Relative” means the spouse, child or parent.”
Code Section 25-4-105(1),
(2), (3)(a) and (4)(d) 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.
(3) No public servant shall:
(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent.(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:
(d) May be a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which is a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent: (i) where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws; or (ii) where the contractual relationship involves the further research, development, testing, promotion or merchandising of an intellectual property created by the public servant.”
Please provide an Official Ethics Opinion as to the facts described in the subject’s letter, a copy of which is attached hereto.
I am interested in being considered for the appointment of County Mental Health Commissioner for the Regional Mental Health Center. The purpose of this letter is to request a ruling from you and the Commission regarding whether to do so would be ethical. The County Administrator advised me that this was something I would need to explore.
My spouse, as you may know, is a Legislator in the State of Mississippi. We were concerned as to whether my possible appointment would be a conflict of interest, and wanted to know if this is absolutely true, or if only under certain conditions would it be true. For instance, to my knowledge there is no salary for this appointment, only a per diem for travel expenses. If that is a problem, I can certainly decline the per diem. Another concern was what this might mean as far as my spouse voting on any mental health bills, fiscal or other. Could you please investigate this and give me a ruling as soon as possible? I have been a mental health counselor for almost twenty years, and I am employed by the Regional Mississippi Medical Center, meaning I am not a State employee.
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 from having an interest, direct or indirect, in a contract authorized by the Legislature during his term and for one year thereafter.[1] [Emphasis added to bold text]
Code Sections 41-19-33, 35 and 39, 1972 Mississippi Code Annotated (amended), provides that a regional mental health commission is a governmental subdivision of the state with members appointed by the board of supervisors for a four (4) year term. Also, the commission members’ compensation, if any, is paid from any available funds and the sources of funds for the regional mental health for construction, operation and maintenance are county tax levies and municipal contributions.[2]
It is this Commission’s view, until such time as an Attorney General’s opinion or a court of competent jurisdiction finds otherwise, that a member of a regional mental health commission established by way of Code Section 41-19-33 is a public officer as defined in Glover v. City of Columbus, 197 Miss. 467, 19 So. 2d 756, (1944), and therefore does not hold his or her position by contract.[3]
Therefore, even if the regional mental health commission is indirectly funded by state funds by way of the legislative appropriation process, such as Medicaid funds, Constitutional Section 109 and Code Section 25-4-105(2) will not prohibit the legislator’s spouse from serving as a member of a regional mental health commission established by way of Code Section 41-19-33 as such a position is a public office and not a position held by contract.
In addition, the requestor is cautioned to advise the legislator’s spouse that a violation of Constitutional Section 109 and Code Section 25-4-105(2) would occur should any contracts with her medical center employer be authorized by the regional mental health commission during her term or for one year thereafter. As an employee of the medical center, the legislator’s spouse has an interest in the medical center’s contracts.
Also, the requestor is cautioned to advise the legislator’s spouse of the prohibition imposed by the above cited Code Section 25-4-105(3)(a).
Code Section 25-4-105(3)(a) will prohibit the legislator’s spouse as a public servant of the regional mental health commission from having a material financial interest in the medical center if the medical center enters into a contract with the regional mental health commission that results in it being a contractor, subcontractor or vendor with the regional mental health commission.[4]
A material financial interest is defined in the above cited Code Section 25-4-103(k)(i)(ii).
The only applicable exception to a violation of Code Section 25-4-105(3)(a), in this instance, is found in the above cited Code Section 25-4-105(4)(d). Specifically, the applicable exception is where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws.
Notwithstanding the above, the requestor is cautioned to also advise both the legislator and spouse to remain keenly aware of the above cited Code Section 25-4-105(1) and Code Section 25-4-101.
Code Section 25-4-105(1) prohibits a public servant from using his or her official position to obtain a pecuniary benefit for the public servant, the public servant’s relative or a business with which the public servant is associated.
Code Section 25-4-103(q), cited above, defines a “relative” as a spouse, child or parent. [Emphasis added to bold text]
Code Section 25-4-103(d), cited above, defines a “business with which he is associated” as 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. [Emphasis added to bold text]
Therefore, Code Section 25-4-105(1) would prohibit the legislator’s involvement, directly or indirectly, in his spouse’s appointment to the regional mental health commission. Also, the legislator must not in any way be involved in legislation that would provide a pecuniary benefit to his spouse as a regional mental health commissioner. This would include, but not be limited to, the amendment of the general law that authorizes compensation to regional mental health commissioners and the appropriation of funds that would pecuniarily benefit, directly or indirectly, mental health commissioners.
In order for the legislator to not be involved, directly or indirectly, in matters that would provide a pecuniary benefit to his spouse, the legislator must totally and completely recuse himself.
Also, Code Section 25-4-105(1) would prohibit the legislator’s spouse as a member of the regional mental health commission from using her official position as a commissioner to obtain a pecuniary benefit for her medical center employer.
Therefore, the legislator’s spouse as a regional mental health commissioner should totally and completely recuse herself from any matter before the regional mental health commission that concerns her medical center employer in order to be certain to avoid a violation of Code Section 25-4-105(1).
An abstention is a vote with the majority of the governing entity’s board and therefore does not qualify as a recusal.
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.
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.
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 legislator’s involvement in legislation that directly concerns the regional mental health commission of which the legislator’s spouse is a member is a circumstance that has the potential of creating suspicion among the public and reflecting unfavorably upon the Legislature. Therefore, the legislator should recuse himself from such matters that come before the Legislature.
Notwithstanding the above, the legislator would not have to recuse himself from the appropriation process concerning Medicaid as his spouse is compensated with local funds; the Medicaid appropriation does not include direct funding to the regional mental health commissions; and the legislator’s spouse’s interest in Medicaid funding is public in nature as a commission member.
Also, the legislator’s spouse as a member of the regional mental health commission should totally and completely recuse herself from any matter before the regional mental health commission that concerns her medical center employer in order to comply with the public policy mandate set forth in Code Section 25-4-101.
The requestor is cautioned to advise both the legislator and spouse that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2) or (3)(a). Even without a legislator or board member’s vote, the authorization by the Legislature or the member’s board, respectively, nonetheless results in a contract in which the legislator or board member has a prohibited interest. [Emphasis added to bold text]
Scott Rankin
[2] In City of Hattiesburg v. Region XII Commission on Mental Health & Retardation, 654 So. 2d 516, (1995), the Mississippi Supreme Court held that a regional mental health commission is a subdivision of the state.
[3 Glover v. City of Columbus, 197 Miss. 467, 19 So.2d 756, (1944), wherein the court stated at Page 757 concerning the definition of a public officer:
“... A public officer, broadly speaking, is a person appointed or elected to perform a designated duty concerning the public. The duty which a municipal policeman is called on to discharge, of course, concerns the public; consequently, broadly speaking, he may be referred to as a public officer. But the fact that his duties concern the public does not, without more, bring him within the provisions of Section 20 and 175 of the Constitution. In order to come within the meaning of these two sections of the Constitution, the officer's duty must be continuing, be 'defined by rules prescribed by law' (Shelby v. Alcorn, 36 Miss. 273, 72 Am.Dec. 169) to be discharged by him in his own right, and not by permission and under the supervision and control of another. State ex rel. Brown v. Christmas, 126 Miss. 358, 88 So. 881; McClure v. Whitney, 120 Miss. 350, 82 So. 259....”
[4] The term contractor is generally used in the strict sense of one who contracts to perform a service for another and not in the broad sense of one who is a party to a contract. Attorney General Mike Moore, ex rel., et al. v. Byars, 757 So.2d 243 (Miss. 2000).
Subcontractor. One who has entered into a contract, express or implied, for the performance of an act with the person who has already contracted for its performance. Black’s Law Dictionary 1277 (5th ed. 1979).
Vendor. A merchant; a retail dealer; a supplier; one who buys to sell. Black’s Law Dictionary 1395 (5th ed. 1979).