This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 4, 2000, basing its approval solely on the facts and circumstances stated herein.
May a county supervisor nominate his spouse and the county board of supervisors thereafter appoint the county supervisor's spouse to the county's planning commission?
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(e), (f)(i)(ii), (g)(i), (h), (l), (p)(i)(ii)(iii) and (q) states:
"(e) 'Compensation' mean money or thing of value received, or to be received, from any person for services rendered.
(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.
(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) 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."
Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
As new County Supervisor, I have two questions to be addressed and they are the following:
1) Would nominating my wife to the County Planning Commission be unethical?
2) On our Board of Supervisors, we have an incumbent member that votes neither yes, no or abstains (our votes are verbal) when this occurs his vote is counted as yes is this considered normal?
Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
This response is written with the understanding that the requestor is referring to a planning commission created pursuant to Code Section 17-1-11, 1972 Mississippi Code Annotated.
It is this Commission's view until such time as an Attorney General's
opinion or a court of competent jurisdiction finds otherwise that a member
of a planning commission established by way of Code Section 17-1-11
is a public officer as defined in Glover v. City of Columbus, 197
Miss. 467, 19 So.2d 756, (1944).(1)
Constitutional Section 109 and Code Section 25-4-105(2), both cited above, will not apply in this instance because, as stated above, a member of a planning commission established by way of Code Section 17-1-11 is a public officer and therefore does not hold his or her position by contract.
Notwithstanding the above, the requestor is advised to 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 a public servant, including a supervisor, from using his official position to obtain a pecuniary benefit for a relative, including a spouse.
Therefore, Code Section 25-4-105(1) would prohibit the supervisor's involvement, directly or indirectly, in his spouse's appointment to the planning commission if the planning commission members are to receive per diem and/or expense reimbursements. The supervisor's spouse's service on the planning commission would preclude not only the receipt of per diem and/or expense reimbursement at the time of appointment but would preclude the board of supervisors at some future date from authorizing a per diem for the planning commission's members as allowed by Code Section 17-7-11.(2)
In order for the supervisor to not be involved, directly or indirectly, in his spouse's appointment to the planning commission he must totally and completely recuse himself.
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 requestor is absolutely prohibited by Code Section 25-4-105(1) from nominating his spouse to the county planning commission. [Emphasis added to bold text]
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.
A planning commission established under Code Section 17-1-11 not only takes advisory actions but also makes administrative decisions that are appealable to the board of supervisors.
Clearly, the appointment of a supervisor's spouse to the planning commission when the planning commission's administrative decisions are appealable to the board of supervisors is such a circumstance that can be expected to create suspicion among the public and reflect unfavorably upon the county and the planning commission. Therefore to comply fully with the mandate set forth in Code Section 25-4-101, the board of supervisors should avoid appointing a supervisor's spouse to the planning commission.
The requestor's second question does not involve an interpretation of
the state conflict of interest laws and therefore is outside the Commission's
jurisdiction to issue an advisory opinion. The requestor is advised to
seek an official opinion from the State Attorney General's Office regarding
the proper and legal procedure to be followed by a county board of supervisors
in voting and recording votes on the minutes.
Ronald E. Crowe
Executive Director
1. Glover v. City of Columbus, 197 Miss. 467, 19 So.2d 756, (1944), wherein the court stated at Page 757 concerning the definition of a public officer:
"... A public officer, broadly speaking, is a person appointed or elected to perform a designated duty concerning the public. The duty which a municipal policeman is called on to discharge, of course, concerns the public; consequently, broadly speaking, he may be referred to as a public officer. But the fact that his duties concern the public does not, without more, bring him within the provisions of Section 20 and 175 of the Constitution. In order to come within the meaning of these two sections of the Constitution, the officer's duty must be continuing, be 'defined by rules prescribed by law' (Shelby v. Alcorn, 36 Miss. 273, 72 Am.Dec. 169) to be discharged by him in his own right, and not by permission and under the supervision and control of another. State ex rel. Brown v. Christmas, 126 Miss. 358, 88 So. 881; McClure v. Whitney, 120 Miss. 350, 82 So. 259...."
2. §17-1-11, in part, states: The governing authority of each municipality and county may, in its discretion, pay to each member of a planning commission a per diem in an amount as determined by such governing authority for each day, or portion thereof, spent in the performance of his duties; however, no member of a planning commission may be paid more than One Hundred Twenty Dollars ($120.00) in the aggregate per month.