This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on December 4, 1998, basing its approval solely on the facts and circumstances stated herein.

May a city's board of mayor and commissioners appoint to the city's public utilities commission a son of one of the city's commissioners?

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 (g)(ii)(v), (h), (l), (p)(i)(ii)(iii) and (q) states:

"(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(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.

(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.

(q) 'Relative' means the spouse, child or parent."

Code Section 25-4-105 (1) 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."

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.

Code Section 25-4-105 (1), cited above, prohibits a city commissioner from using his official position with the city to obtain a pecuniary benefit for his son.

Therefore, the city commissioner would violate Code Section 25-4-105 (1) should he fail to totally and completely recuse himself from the mayor and city commission's appointment of his son as a city utilities commissioner.

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 utilities commissioners are authorized by the city's ordinance to receive the compensation described in the requestor's letter, $40 per diem per meeting attended, not to exceed $200 per month, plus expenses. Therefore, the city commissioner's son once appointed to the utilities commission is due such described compensation. It would be the son's unilateral decision to donate his compensation back to the utilities commission once he received it. There would be no authority for the utilities commission to withhold his compensation.

Therefore based on the above, the city commissioner's son's decision to donate back to the utilities commission his compensation would not prevent the city commissioner from violating Code Section 25-4-105 (1) should he vote or otherwise participate in the mayor and city commission's appointment of his son as a city utilities commissioner.

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 mayor and city commission's appointment of the son of one of the city commissioners to the city's utilities commission has the potential of creating suspicion among the public and reflecting unfavorably upon the city and the city's utilities commission. Therefore, this is another reason why the city commissioner should totally and completely recuse himself from the mayor and city commission's appointment of his son as a city utilities commissioner.
 
 
 
 
 
 
 
 

Ronald E. Crowe

Executive Director