ISSUE 2. May the superintendent of the school district or other school officials attempt to influence aldermen's votes on school board appointments, when the aldermen are employees of the school district or when the aldermen's spouses are employees of the school district?
ISSUE 3. May aldermen vote on matters concerning the school district when they have been approached by the superintendent of the school district or other school officials concerning the matters?
ISSUE 4. May a school district's superintendent's spouse be employed as the school district's librarian?
The pertinent conflict of interest laws to be considered here are:
"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 (f)(i)(ii), (g)(ii)(iii), (h), (l), (p)(i)(ii)(iii) and (q) states:
"(f) 'Contract' means:
(ii) Any agreement on behalf of the government which involves the payment
of public funds.
(iii) All school districts.
(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:
(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."
1. Should these three (3) aldermen vote on school board appointments or other school matters which come before the Board of Alderman?
2. Is it proper for the Superintendent of the School District or other school officials to approach and attempt to influence an alderman's vote on School Board appointments, where that alderman is also a teacher employed by the District or the alderman has a wife or child employed by the District?
3. If an alderman, with connections to the School District as described above, is approached by the Superintendent or school officials concerning school matters which may come before the Board of Aldermen then should the alderman involved abstain from voting on those matters?
I am also asking you to address whether the Superintendent of the School District may employ his wife as librarian with the School District?
Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
Before addressing the requestor's questions, it is necessary to inform the requestor of the potential conflict of interest restrictions a municipal board member faces when the board member or the board member's spouse is employed by the municipal school district.
As set forth in the attached Advisory Opinion No. 97-032-E, the above cited Constitutional Section 109, Code Section 25-4-105 (1) and (2) and Code Section 25-4-101 are pertinent in determining if a municipal board member that is employed by the municipal school district has a conflict of interest. These same sections also apply when a municipal board member has a spouse employed by the municipal school district, except for Constitutional Section 109 and Code Section 25-4-105 (2).
It is not as such a violation of the conflict of interest laws for a municipal school district employee or a municipal school district employee's spouse to simultaneously serve as a municipal board member of the municipality where the school district employing him or her is located. Since the Legislature's passage of the Uniform School Law of 1986, there is no absolute prohibition to such dual service as the municipal board's tax levying authority for school purposes is now a mandatory action and not a discretionary one.
Notwithstanding the above, a municipal school district employee or a municipal school district employee's spouse choosing to serve as a municipal board member must 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 public servants from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business with which they are associated.
To avoid using their official positions to obtain a pecuniary benefit, the public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests.
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.
Therefore, the only way a municipal board member can be certain to avoid violating Code Section 25-4-105 (1) is to recuse himself or herself from all matter coming before the municipal board that concern the municipal school district employing the municipal board member or the municipal board member's spouse. This is especially true regarding the municipal board's appointments of municipal school board members.
The issue 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 municipal school district employee's or a municipal school district employee's spouse's direct or indirect involvement with matters concerning the municipal school district that are before the municipal board of which the school employee or the school employee's spouse is a member creates suspicion among the public and reflects unfavorably upon the municipal school district and the municipality.
In addition, a circumstance can exist that would cause a violation of Constitutional Section 109 and Code Section 25-4-105 (2), both cited above, 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 municipal board member from directly or indirectly having an inherent interest and/or receiving a pecuniary benefit from his municipality or his school district employer as a result of any contracts existing between the two governmental entities.
A recusal or an abstention does 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.
In regard to ISSUE 1 , the requestor is referred to the attached Advisory Opinions No. 94-013-E and No. 95-029-E.
As provided in these attached advisory opinions, a municipal board member employed by the municipal school district or a municipal board member whose spouse is employed by the municipal school district is prohibited from voting on the appointment of school board members by Code Section 25-4-105 (1) and also should not vote on such appointments as such actions are contrary to the state's public policy set forth in Code Section 25-4-101. These sections also would apply in the same manner to a municipal board member whose child is employed by the municipal school district.
Regarding other school matters, Code Section 25-4-105 (1) and Code Section 25-4-101 apply to matters concerning discretionary decisions that could affect the pecuniary status of the board member or board member's spouse, or child, as they apply to the appointment of school board members. Therefore, the municipal board members should recuse themselves from such matters concerning discretionary decisions that could affect the pecuniary status of the board member or board member's spouse or child.
However, the municipal board members would not be required to recuse themselves from matters that are purely ministerial in nature where the municipal board member has no discretion, such as setting the municipal school district's levy since passage of the Uniform School Law of 1986.
In regard to ISSUE 2 and ISSUE 3 , the school district superintendent's and other school district officials' actions to influence the municipal board members' votes are fitting examples of why school employees serving as municipal board members or a school employee's relatives serving as municipal board members are required to recuse themselves from school related matters.
In addition, the school district superintendent's and other school district officials' actions to influence the municipal board members' votes are clearly contrary to the "Legislature's Declaration
of Public Policy" set forth in Code Section 25-4-101. Therefore, they are obligated to avoid attempts to influence the municipal board members' votes in the future when the influence involves the municipal board members' or their family members' employment or compensation with the school district.
ISSUE 4. As set forth in Advisory Opinion No. 97-037-E, a superintendent of education is prohibited by Code Section 25-4-105 (1), cited above, from recommending his spouse for employment with the school district.
Code Section 37-9-17 requires the superintendent of education to recommend to the school board all certificated employees and non instructional employees. However, Code Section 37-9-17 allows a school board to establish a policy where the board's designee, in place of the superintendent of education, is authorized to recommend employment of certificated employees to the school board for no more than two (2) positions for each employment period.
Therefore, a superintendent of education's spouse can be employed as a certificated employee by a school board if the school board has established a policy to authorize the school board's designee to recommend no more than two (2) positions and the superintendent's spouse's position is one of the two (2) positions.
Notwithstanding the above, a superintendent of education must be certain not to use his official position, directly or indirectly, to assist his spouse in being employed by or in retaining her employment with the school district. In order to do this, a superintendent of education must totally and completely recuse himself from the employment process.
A total and complete recusal requires that a superintendent of education not only avoid debating, discussing or taking action on his spouse's employment during the official meeting, but also avoid discussing the subject matter with the school board members, board designee, other 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 himself, a superintendent of education must leave the room or area where such discussions, considerations and/or actions take place. The minutes of the school board should state that the superintendent of education left the meeting by showing him absent for the action concerning his spouse's employment.
The issue presented by the requestor regarding a superintendent of education's spouse being employed by the school district also must be viewed as it relates to Code Section 25-4-101, set forth above. As stated 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 school district's employment of its superintendent of education's spouse has the potential of creating suspicion among the public and reflecting unfavorably upon the school district.
The designee system just discussed only applies to certificated positions.
Thus, the spouse of the superintendent cannot be employed in a non instructional
position without the superintendent recommending his or her spouse. That
recommendation by the superintendent results in him or her using his or
her official position to benefit the spouse in violation of 25-4-105 (1).