May 3, 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 May 3, 2002, basing its approval solely on the facts and circumstances stated herein.
May a member of a county board of supervisors, who serves on the board of a planning and development district, vote to hire the district to perform duties for the county?
Your opinion request to the Office of the Attorney General dated April 15, 2002, was referred by that Office to the Mississippi Ethics Commission on April 17, 2002, as your request involves the above issue that concerns 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(f)(i)(ii),
(g)(i)(v), (h), (l) 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.(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),
(3)(a) and (4)(b) 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.(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 thegovernmental 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:
(b) May be a contractor or vendor with any authority of the governmental entity other than the 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 he is a member, officer, employee or agent where such contract is let to the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received or where the goods, services or property involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws.”
Pertinent facts and circumstances provided by the requestor, absent
identifying data, are set forth as follows and considered a part of this
opinion.
Please accept this as a request for an official opinion from the Attorney General’s Office regarding the following:
Can a member of the County Board of Supervisors who serves on the board of directors for a Regional Planning and Development District, take part in a vote to hire said district to perform duties for the County.At present the Regional Planning and Development District is helping the County in our redistricting plan.
The Commission formally adopts Advisory Opinion No. 96-025-E in response to this request and by attachment incorporates it into this opinion.
Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.
In the attached Advisory Opinion No. 96-025-E, the Commission held that planning and development districts are governmental entities under the definition set forth in the above cited Code Section 25-4-103(g)(v).Therefore, the public servants appointed to a planning and development board are concerned only with competing public interests and not private interests, as long as they are not compensated for their service on the planning and development board.
Based on this finding, public servants of other governmental entities, including members of various local governmental boards, serving as members of the board of directors of planning and development districts is not a circumstance that prohibits the planning and development districts from contracting with those governmental entities.
In regard to the above issue, the conflict of interest laws do not prohibit a supervisor, who also serves on the planning and development district board, from voting to hire the planning and development district to perform services for the county as such a decisioninvolves competing public interest when the supervisor is not compensated as a planning and development district board member.
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, a county a supervisor serves contracting with a planning and development district of which he is a board member has the potential of creating suspicion among the public and reflecting unfavorably upon the county.Therefore, the supervisor must be able to support a finding that his actions and decisions related to the planning and development district are made in the best interest of the county.If the supervisor cannot support such a finding, then the supervisor should totally and completely recuse himself from the Board of Supervisors’ decision to contract with the planning and development district.
An abstention 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 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 in order 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.
Scott Rankin
Executive Director