This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on March 3, 2000, basing its approval solely on the facts and circumstances stated herein.
May the spouse of a newly elected member of the county board of supervisors remain employed by the community hospital owned by the county?
Your opinion request to the Office of the Attorney General dated February 7, 2000, was referred by that Office to the Mississippi Ethics Commission on February 8, 2000, as your request involves the above issue that concern the Mississippi conflict of interest laws.
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 25-4-103(a), (e), (f)(i)(ii), (g)(i)(v), (h), (l), (p)(i)(ii)(iii) and (q) states:
"(a) 'Authority' means any component unit of a governmental entity.
(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; 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) 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 in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of this opinion.
The Commission formally adopts Advisory Opinion No. 93-126-E in response to this request and by attachment incorporates it into this opinion.
Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a public board member, including a county supervisor, from having an interest, direct or indirect, in any contract authorized by his board during his term and for one year thereafter.
The Mississippi Supreme Court has ruled that the appropriation or approval of funding or expenditure authority for a governmental entity by another governmental board is part of the contract authorization process of that governmental entity's contracts.
Section 41-13-47, 1972 Mississippi Code Annotated, provides that the board of trustees of a community hospital shall on or before the first Monday of each September submit the community hospital's proposed budget to the community hospital's owner(s) for approval by the owner(s) on its official minutes.
Also, the Mississippi Supreme Court, in Frazier v. State, 504 So. 2d 675 (1987), held that a public official always has a prohibited interest in the public official's spouse's contract as anticipated in Constitutional Section 109 and Code Section 25-4-105(2).(1)
Therefore as set forth in the attached advisory opinion, Constitutional Section 109 and Code Section 25-4-105(2) will absolutely prohibit the newly elected supervisor's spouse from continuing her employment, or from contracting in any other way, with the county-owned hospital after the county board of supervisors of which he is a member approves its first budget submitted by the county-owned hospital. [Emphasis added to bold text]
Specifically, the facts presented by the requestor indicate the newly elected supervisor's spouse's employment with the county-owned hospital will violate Constitutional Section 109 and Code Section 25-4-105(2) at the beginning date of the hospital's new budget which is October 1, 2000.
The requestor is cautioned to advise the newly elected supervisor that a recusal or an abstention will 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.
Notwithstanding the above, the requestor is also cautioned to advise the newly elected supervisor to remain keenly aware of the Code Section 25-4-105(1), cited above, during his spouse's remaining short period of employment in the current budget year with the county-owned hospital that coincides with his serving on the county board of supervisors.
In order to comply with the mandates of Code Section 25-4-105(1), the newly elected supervisor must totally and completely recuse himself from any matter coming before the board of supervisors concerning the county-owned hospital, including but not limited to the appointment of hospital trustees, during his spouse's remaining short period of employment in the current budget year with the county-owned hospital.
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.
Again, the requestor is cautioned to advise the supervisor that an abstention
or a recusal will not prevent a violation of Constitutional Section 109
and Code Section 25-4-105(2).
Ronald E. Crowe
Executive Director
1. Also, see Waller v. Moore, 604 So. 2d 265 (1992) and Towner v. Moore, 604 So. 2d 1093 (1992).