MISSISSIPPI ETHICS COMMISSION OPINION OUTLINE

Transcription

1 MISSISSIPPI ETHICS COMMISSION OPINION OUTLINE Published by the Mississippi Ethics Commission?P. O. Box 22746, Jackson, Mississippi Telephone: (601) ?Facsimile: (601) ? Address: Web Address: NOTICE: The exclusive purpose of the Opinion Outline is to periodically inform public servants of official advisory opinions issued by the Mississippi Ethics Commission. The Opinion Outline contains only synopses of opinions and is intended solely as a reference material. The reader must obtain a copy of the full opinion in order to fully understand the requestor s facts and the Commission s findings. Code Section (i) provides a public official limited protection from civil and criminal liability only if the governing facts are presented in writing to the Commission by the public official; the Commission provides an opinion to the public official referencing those particular facts; and the public official in good faith follows the Commission s direction given in the opinion. VOL. 9 NO. 4 DECEMBER E E E E A recreation authority board is clearly a governmental board and its members are public servants subject to the Ethics in Government Laws. Therefore, (1) prohibits a member of a recreation authority board from voting or otherwise using his or her position to hire a parent, spouse or child. Thus, a member of a recreation authority board is absolutely prohibited from voting to employ his or her son but is not prohibited by (1) from voting to employ his or her niece. Referred to the Attorney General s Office regarding the state nepotism law. Cautioned regarding Constitutional Section 109 and (2). [5, 9, 19, 31, A] A municipal election commission should not appoint its members spouses as poll workers as it damages the public trust in a fair and impartial election process and does not comply with the public policy mandate set forth in Also, (1) will absolutely prohibit a municipal election commissioner from participating in the appointment of and/or the approval of compensation for poll workers when one of the poll workers is the commissioner s spouse. [21, A] Constitutional Section 109 and/or (2) will absolutely prohibit an insurance company with which a supervisor is associated from provide insurance coverage to a planning and development district when the supervisor s county provides funding to the planning and development district and the supervisor serves on the planning and development district s board. [14, 19] (1) prohibits a supervisor from being involved in any way in the county s decisions, discussions or actions pertaining to the awarding of a telephone service contract with a company with which the supervisor s son and son-in-law are associated. Also, should be sufficient for the board of supervisors to not contract with a company with which one of its member s son and son-in-law are associated. Cautioned regarding Constitutional Section 109 and (2). [14, 31] 1

2 E E E E E E E E An emp loyee of the county tax collector who benefits from an interlocal agreement between the county and the city and who becomes a member of the board of aldermen of the city would violate Constitutional Section 109 and (2) if the interlocal agreement was entered into, renewed and/or if commission payments under the agreement were retained during the county tax collector employee s term on the board of aldermen or within one year thereafter. [6, 11, 15, M] A municipality may contract with an alderman s child or the child s business only when the parent and child are totally financially independent. The alderman may not participate in the contracting process as (1) prohibits an alderman from using his or her position to obtain a pecuniary benefit for a relative or a business with which he or she is associated. Cautioned regarding Constitutional Section 109 and (2). [6, 31] (2) will prohibit: 1) a business that is owned by or is an employer of a Workforce Board member being selected by the Workforce Board as a training provider and being paid by the Workforce Board s one stop provider as a training provider with funds provided by the Workforce Board through its agreement with the one stop provider; and 2) a not-for-profit organization that has as one of its directors or that is an employer of a Workforce Board member being selected by the Workforce Board as a training provider and being paid by the Workforce Board s one stop provider as a training provider with funds provided by the Workforce Board through its agreement with the one stop provider. [19, I] A former state commission member is not prohibited from representing a client in a matter on which he did not vote and was not otherwise directly concerned or personally participated. Cautioned regarding Constitutional Section 109 and (2) and (3)(e) and [B, E] The state conflict of interest laws will not prohibit a member of a school board from voting to employee a coach/teacher who is a member of the county board of supervisors when the school board member is an employee of the county the supervisor serves, unless the school board member personally obtains a pecuniary benefit for casting a favorable vote to employ the supervisor which is prohibited by (1). The facts that the vote was 3 to 2 and that the county board of supervisors is the levying authority for the school district does not change the application of (1) to this circumstance. In addition, (1) does prohibit a superintendent of education from recommending his cousin for employment since a cousin is not a relative for purposes of the conflict of interest laws. [11, 14, 20] (1) prohibits a public servant from using his or her official position to obtain pecuniary benefit for a relative. Relatives for purposes of the Ethics in Government Law are spouses, children and parents. Therefore, it is not a violation of the Ethics in Government Law for a municipality to purchase land from the first and second cousins and brother-in-law of an alderman. [6, 31] no opinion issued It is not as such a violation of the conflict of interest laws for the parent of an employee of a community college to be a vendor to the community college if the employee receives no monetary benefit whatsoever. Cautioned regarding (1) and (3)(a). [18, 31] 2

3 E E E E E When contractual services are being provided by a community hospital to an LLC, the LLC is not a contractor to the hospital. Here the LLC established by certain community hospital employees will compensate the hospital for management services provided to the LLC by the hospital. Under this arrangement, the LLC is not a contractor to the community hospital, and no violation of (3)(a) will result if the Board of Trustees enters into the proposed management agreement with the LLC. Cautioned regarding (1). [24] 1. An attorney acting as counsel to a city board and his law firm acting as counsel to the city s depository can easily violate the conflict of interest laws by asserting his influence as the governmental entity s board s counsel by urging the governmental entity s board to select the bank he represents as its depository. Also, the same attorney and/or law firm representing a city and the city s depository has the potential of creating suspicion among the public and reflecting unfavorably upon the city as set forth in and thus such dual legal representation should be avoided. However, an attorney serving as counsel to a city board does not violate (3)(a) when he or his law firm simultaneous serves as counsel to the city s depository and when such service results in a material financial interest in the bank because of the exception set forth in the above cited (4)(a) which provides that there is no violation of (3)(a) if the governmental contracts with the bank are limited solely to the bank purchasing bonds, notes or other evidences of debt or serving as the governmental entity s depository. Cautioned regarding (1), (3)(d) and (5). 2. A law partner of an attorney of a board of aldermen may serve on the board of directors of a bank selected by the board of aldermen as its depository without violating (3)(a) if certain narrow and limited circumstances exist. Cautioned regarding [1, 2, 7] A police chief will not be in violation of the ethics laws simply because the municipality that he is employed by contracts with his nephew or brother to provide it services. [5, 7] An individual may simultaneously be an elected county school board member and be employed by the county board of supervisors as a code enforcer in the office of planning and development without violating the conflict of interest laws. This opinion is based on the county school board and the county being separate governmental entities as defined in (g)(h). However, the board member can violate Constitutional Section 109 and (2) should a contract exist between the two governmental entities in which the public servant would have an inherent interest and/or a private pecuniary benefit. [9, 11, 20] A former mayor may be employed within one year of his resignation by an economic development organization of which the city is a dues paying member as the facts reported reveal that the board of aldermen has not authorized the contract of employment he seeks with the economic development organization since none of the money the city pays in dues would go to fund his employment contract. This finding is based, in part, on the relatively small sum of membership dues paid by the city. If the dues were a substantial amount of money, they could free up other funds and allow the economic development organization to increase its payroll. That scenario, if it arises within one year of his resignation, could constitute a violation of Constitutional Section 109 and (2). Cautioned regarding (3)(e). [8, K] 3

4 E E E E E E E Constitutional Section 109 and (2) prohibit a member of a supervisor from having an interest in a contract authorized by the board of supervisors during his or her term or for one year thereafter. However, under these facts it appears the board of supervisors will in no way authorize this contract so the supervisor will not violate Constitutional Section 109 or (2) by virtue of his position as supervisor if the proposed real property sale is completed. Nevertheless, if the supervis or is a member of the local planning and development district board, as many supervisors are, and the PDD board takes any action to authorize the contract in question during or within one year of the requestor s term on that board, then the requestor would be in violation of both Constitutional Section 109 and (2). In this context authorized means more than just the obvious act of approving a contract. It also means appropriating money. Cautioned regarding (5). [14, 19] A munic ipality may purchase or lease real property from a school district when a member of the board of aldermen is the spouse of a member of the school board. [6, 20, A] If no other qualified vendor can be found, then a school district would be compelled out of necessity to purchase from a board member s employer, even if the purchase would otherwise violate Constitutional Section 109 and (2) or fail to comply with the state public policy set forth in This Commission has long recognized an implied exception to those prohibitions when a sole source for a necessity is involved. Naturally, the school district is under a continuing duty to make a good faith effort to secure an alternate vendor. If the board member s employer is indeed the sole qualified source for paper, then the purchase would not violate (3)(a) as the exception found in (4)(d) would apply. Cautioned regarding (1). [20] An individual contracting with a city to do building inspections is not an agent of the city and is not a public servant. Consequently, he will not violate the Ethics in Government Laws if he contracts with the city on a public construction project. [5] A State Department s executive director will not have used his official position to obtain a pecuniary benefit for a non-profit entity on whose board he serves, and thereby will not violate (1), if a Redevelopment LLC and/or its managing member fulfill their commitment to local political subdivisions by purchasing property owned by the nonprofit entity by way of a PDD loan commitment when 1) the State Department is required by state law to use the bond funds in question for the development of this specific historic area including the construction of the housing units; 2) the PDD is the entity required by state law to manage and carry-out the loan including the construction of the housing units; and 3) the Redevelopment LLC s managing member first made the proposal in its original applications to the local political subdivisions to purchase the land in question to build the housing units in the historic district. [19, 22, B, E, I] An individual contracting with the city to do building inspections for the city is not an agent of the city and is not a public servant. Consequently, he will not violate the Ethics in Government Laws if he purchases real property from the city. [5] A county road department secretary would violate (1) if she is personally involved in the contracting for, approval of and the payment of her father s clay gravel by the county road department. Notwithstanding the above, this Commission has long recognized an implied exception to the above prohibition when a sole source for a necessity is involved. Naturally, the county road department is under a continuing duty to make a good faith effort to secure an alternate vendor. [9, 11, 31] 4

5 E E E E E E E E E E A county election commission should not appoint its members parents as poll workers as it damages the public trust in a fair and impartial election process and does not comply with the public policy mandate set forth in Also, (1) will absolutely prohibit a county election commissioner from participating in the appointment of and/or the approval of compensation for poll workers when one of the poll workers is the commissioner s parent. However, the appointment of a county election commissioner s aunt as a poll worker cannot violate (1) and does not raise the same concerns under the public policy provision of as does a parent s appointment. [21, 31] An independent contractor with a city may serve on the board of a non-profit entity that receives funding from the city. Cautioned regarding (3)(a). [5, I] Even if a county supervisor and daughter are in fact totally financially independent, the supervisor must still refrain from using his official position to obtain pecuniary benefit for his daughter in violation of (1). To avoid using his position in violation of that statute, the supervisor must completely recuse himself from any matter affecting the compensation and benefits paid to his daughter by the county. This restriction includes not only matters directly and specifically affecting the supervisor s daughter but also includes matters affecting her as a member of a class of people, such as all county employees. Cautioned regarding Constitutional Section 109 and (2). [14, 31] A private, non-profit entity which receives some funds from the government may do business with its board members as the private, non-profit entity is not a governmental entity and its board members are not public servants for purposes of the Ethics in Government laws. [I] Constitutional Section 109 and (2) prohibits a bank from being selected by a municipal water and light commission as its depository after an employee of the bank becomes a member of the municipal water and light commission. [2, 5, 19] no opinion issued The position of circuit court judge is clearly a public office. Thus, a legislator may resign from the legislature and accept appointment to the circuit court bench within one year without violating Constitutional Section 109 or (2). The Office of the Attorney General should also be contacted for advice regarding compliance with Constitutional Section 45. [28, F] no opinion issued (3)(b) prohibits an employee of a governmental entity, including a state agency, from purchasing real property, directly or indirectly, from the governmental entity. This prohibition applies even when the sale will be for market value. Therefore, a water supply district s general manager nor the general manager s spouse may purchase residential property from the water supply district. [19, A, B, E] no opinion issued 5

6 E 1. Constitutional Section 109 and (2) will prohibit a school board from using a bank as its depository or from contracting in any other way with a bank when a member of the school board is also a member of the bank s advisory board. Also, the exception set forth in (4)(a) to a violation of (3)(a) will not apply when a public board member holds a position on a bank s advisory board because a bank board member does not come within the statutory exception of officer or stockholder. This Commission has held in the past that an interest resulting from an advisory board membership may be de minimis non curat lex. It is a question of fact as to whether a bank advisory board member s service on an advisory board, without decision making authority on the bank s behalf, and any associated or other financial interest in or compensation from the bank is a de minimis interest. It is this Commission opinion that such a circumstance should be avoided to comply with the public policy mandate set forth in Cautioned regarding (1). 2. Also, has an effect on the application of Constitutional Section 109. To avoid a violation of Constitutional Section 109 by avoiding the contract authorization by the school board, not only must the school board be fully and completely removed and replaced by a designated entity for the purposes of soliciting bids from depositories and for selecting depositories, the school board also must be removed and replaced by a designated entity for purposes of selecting and opening accounts; for approval of securities; for the transfer and deposit of funds between depositories; and for all other such related functions. [2, 20] E The State s public policy of public service being a public trust, as set forth in , is a sufficient reason to forbid the State Tax Commission s Equalization Division s employees who perform appraisal work for the State from contacting with counties to do ad valorem tax appraisal work as such work is regulated and subject to the authority of the State Tax Commission and its Equalization Division. [15, A, E] E The four elements for applying the prohibitions in Constitutional Section 109 and (2) are in theory present when a state district contracts with a bank during its member s term or within one year thereafter and the member holds a small number of shares of stock in the bank. Yet, the board member s prohibited interest in the bank contracting with the district may be construed to be an interest that is de minimis non curet lex. The Court has provided no guidance on when it would classify an interest as a de minimis interest. Each case must be determined based on its individual facts and must ultimately be decided by a court of competent jurisdiction if the de minimis interest is contested. Even though a court of competent jurisdiction must ultimately determine whether a public servant has a de minimis interest, it is this Commission s opinion that a court would be expected to consider a stock ownership of.0022% with a dividend of only $ per year, standing alone, to be a de minimis interest. Also, the exception set forth in (4)(a) to a violation of (3)(a) is applicable in this instance as the only interest in question is a stockholder interest in the bank. Cautioned regarding (1). [2, 19] E E There is no prohibited conflict of interest with a professional firm that would prevent a state agency s board from contracting with that firm should they be selected to perform a professional service because of an executive officer of the state agency and an employee of the professional firm being two of seven members who own a horse together. Cautioned regarding [B, E] (1) will prohibit an alderman from taking any action in regard to a zoning matter that would provide a pecuniary benefit to his architectural firm or his firm s clients. Cautioned regarding [5, 6] 6

7 E E E E E E E E Constitutional Section 109 and (2) will prohibit the city from contracting to purchase land from an alderman and making improvements to the alderman s land for construction of a sewer system and access road during the alderman s term and for one year thereafter. However, Constitutional Section 109 and (2) do not prohibit the transfer of the ownership of the property and related improvement when ordered by a court of competent jurisdiction in an eminent domain proceeding. [6] An individual would be in violation of Constitutional Section 109 and (2) as a member of a state district s board if the state district purchases equipment or parts from the equipment company employing him during his term on the board or for one year thereafter. [19] It is not as such a violation of the conflict of interest laws for a county to do business with a company which employs the son of the executive director of a state agency which is involved in the funding of a project for the county. Cautioned regarding (1). [31, B, E] (3)(a) prohibits a police officer from having a material financial interest in a business which is a contractor, subcontractor or vendor to the city. Here the drug store is a vendor to the county but is not a contractor, subcontractor or vendor to the city. Thus, no violation will arise if the city reimburses the county for medications provided to city inmates held in the county jail. [5, 7] It seems possible that the Court could interpret Howell and Frazier to mean that prohibiting all employees of all corporations from serving on a Community Development Commission (CDC) Board if the corporation were to purchas e land from the CDC pursuant to a uniform procedure and based upon a uniform sale price would unnecessarily deprive our people of the choice of selecting what may well be among our most able and deserving public servants. Therefore, while a strong case for an interpretation of the Court s opinions can be made to the contrary, the Commission feels compelled under these facts, and at this time, to state that an employee of a corporation may not as such be prohibited by Constitutional Section 109 and (2) from serving as a CDC board member simply because the corporation purchases land from the CDC pursuant to a uniform procedure and based upon a uniform sale price. Cautioned regarding (1) and (3)(a)(b). [9, 19] A municipality and a municipal separate school district are separate governmental entities, as that term is defined in (h). Thus, neither (3)(a) nor any other provision of Mississippi s Ethics in Government Laws would be violated if an employee of a municipality also serves as a member of a municipal school board. [7, 20] An attorney for a state board is a public servant because he or she acts as an agent for the client. Anyone who is an agent of the government may be a public servant, as defined in (p)(ii) (3)(e) prohibits an attorney who formerly represented a state board from representing paying clients before that board in any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated while he was representing the board. Cautioned regarding (5). [A, B, E] A supervisor may participate in an action by the board of supervisors of which he is a member in the approval of a TIF loan that will benefit future phases of a developer s project even though the developer has already received private financing from a bank which employ s the supervisor s spouse for the first phase of the project. Cautioned regarding Constitutional Section 109 and (1) and (2). [14, 22, A] 7

8 E E E E (3)(a) prohibits a school district from purchasing from a corporation s grocery stores when a member of the school district s board of trustees is a manager of one of the corporation s grocery stores and his salary from same results in him having a material financial interest in the corporation. The exception in (4)(d) provides that the goods provided by the corporation s grocery stores must be available from two or fewer sources to avoid a violation of (3)(a) which is unlikely in this instance. [20] A member of a city s board of architectural review is not prohibited by Article 3 of the Ethics in Government Act from being personally involved in the mayor s re-election campaign, including serving as the chairman of the campaign committee to re-elect the mayor. Cautioned regarding [5, 8] It is not as such a violation of the conflict of interest laws for a narcotics officer with a county sheriff s department to simultaneously serve as the mayor of a town located within the county since a town and a county are separate governmental entities as defined in (g)(h). Cautioned regarding Constitutional Section 109, (1) and (2), and [8, 11, 13, M] City public servants are not prohibited by (3)(a)(c) from participating in a HOME Program to assistance with renovation of single family dwellings whereby the Town received the grant money for the program through MDA. Constitutional Section 109 and (2) will absolutely prohibit the mayor and town board members from participating in the HOME Program operated by the Town. Cautioned regarding (1) and [6, 7, 8, 22] 8

9 MISSISSIPPI ETHICS COMMISSION ADVISORY OPINION SUBJECT INDEX REF. NO. SUBJECT 1...Public and Private Attorneys 2...Banks and other Financial Institutions 3...Bail Bonds 4...Financial and Performance Bonds 5...City Agency or Department 6...City Alderman, Councilman, etc. 7...City Employees 8...Mayors 9...County Agency or Department 10...County Coroner/Medical Examiner 11...County Employees 12...County Prosecuting Attorney 13...County Sheriff 14...County Supervisors 15...County Tax Assessor and/or Collector 16...County Constables 17...Circuit Clerks 18...Community Colleges (Jr. Colleges) 19...Misc. District or Regional Gov't. Entities 20...School Districts (city, county, etc.) 21...Election Commissioners 22...Gov't. Grants 23...Publicly owned Hospitals 24...Community Hospitals 25...All Housing Authorities 26...Chancery Clerks 27...Court Administrator 28...All Judges and Courts 29...Justice Court Judges and Justice Courts th Section Land 31...All Relatives except Spouses A...Spouses B...State Agency or Department C...State Department or Board of Education D...State Elected Officials E...State Employees F...Legislature and Members G...Publicly supported State Universities H...Trust Funds, Accounts, etc. I...Organizations, Businesses, etc. J...Casinos, Gaming Commission, Bingo K...EDA, etc. L...Lobbyists, etc. M...All Candidates for public office 9