This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on August 6, 1999, basing its approval solely on the facts and circumstances stated herein.
May an employee of the Mississippi Forestry Commission serve as a member of a school district board of trustees when the employee administers an area that includes the school district and when the Mississippi Forestry Commission manages the school district's sixteenth section timber?
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 (f)(i)(ii), (g)(iii)(v), (h) 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:
(iii) All school districts; 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.
(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 (2) states:
"(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."
Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
I am an employee of the Mississippi Forestry Commission. In my present position, I am responsible for administering our programs and services in a three county area. I directly supervise three County Foresters who manage sixteen section timberland.
My question is whether or not I am eligible to run for a district school board position. In there any conflict of interest since our agency manages sixteen section timberland. When we sell timber by a bidding process, 15% of the sale proceeds goes into a forestry escrow account to pay for our MFC services. The rest of the money is given to the respective county school. I do not directly manage the section timberland anymore. The County Forester is directly involved with timber management on the sections.
Please let me know your response as soon as possible. The special election is scheduled for November 2, 1999, and I have to quality in the month of August.
Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
It is not as such a violation of the state conflict of interest laws for a state employee to serve as a member of a school district board of trustees.
However, the requestor is advised that 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 state employee serve as a member of a school district board of trustees.
Such a circumstance involves the existence of contracts between the two governmental entities and the public servant having an inherent interest and/or a private pecuniary benefit in such contracts.
Constitutional Section 109 and Code Section 25-4-105 (2) would prohibit a school board member from directly or indirectly having an inherent interest and/or receiving a personal or pecuniary benefit as a result of any contracts existing between the school district and the state agency.
Section 29-3-45, 1972 Mississippi Code Annotated, provides that school boards shall enter into agreements with the State Forestry Commission for the general supervision and management of all sixteenth section lands classified as forest land.
However, the prohibitions set forth in Constitutional Section 109 and Code Section 25-4-105 (2) do not apply when the contract is mandatory and the public bodies decision is therefore not discretionary. (1)
It is clear from the wording set forth in Code Section 29-3-45 that the state's school boards are required to enter into their agreements with the State Forestry Commission. Therefore, the requestor would not violate Constitutional Section 109 and Code Section 25-4-105 (2) when the new school board enters into its agreement with the Mississippi Forestry Commission should he be elected to the school board.
Notwithstanding the above, 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.
Due to the relationship between the school board and the Mississippi Forestry Commission in the supervision and management of the school district's sixteenth section land, it can be expected that the requestor simultaneously serving in his current position with the Mississippi Forestry Commission and as a member of the school board has the potential of creating suspicion among the public and reflecting unfavorably upon the Mississippi Forestry Commission and the school district.
Therefore, the requestor in order to comply fully with the public policy mandate set forth in Code Section 25-4-101, should totally and completely recuse himself from any matter coming before the school board regarding the Mississippi Forestry Commission's supervision and management of the school district's sixteenth section land. In like manner, the requestor also should totally and completely recuse himself as a Mississippi Forestry Commission employee from any Commission decisions and actions concerning the school district's sixteenth section forest lands.
The requestor is advised that an abstention is a vote with the majority of the school board and therefore does not qualify as a recusal.
A total and complete recusal requires that the individual not only avoid debating, discussing or taking action on such matters during an official school board 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 individual must leave the room or area where such discussions, considerations and/or actions take place. The minutes of the school board should state the individual left the meeting by showing her absent for that matter.
The requestor is also advised to contact the federal government concerning
whether The Hatch Act would prohibit the requestor from holding
an elected position while an employee of a state agency receiving federal
funding. The Hatch Act is a federal law and, therefore, not subject
to interpretation by the Commission. The requestor should contact the United
States Office of Special Counsel at 1-800-854-2824, in Washington, D.C.,
regarding questions concerning The Hatch Act .
Ronald E. Crowe
Executive Director