This Advisory Opinion concerns the following issues 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.
ISSUE 1. May the spouse of a newly elected/appointed public school board member be employed by the public school district the public school board member serves?
ISSUE 2. May the spouse of a newly elected/appointed public school board member continue to be employed and/or be re-employed by the public school district the public school board member serves?
ISSUE 3. May a company owned by a newly elected/appointed public school board member continue to sell to the public school district the public school board member serves?
ISSUE 4. May the spouse of a newly elected/appointed public school board member continue to be employed by the public school district the public school board member serves under a multi-school years contract[s]?
ISSUE 5. May a public school board member work for a company that is owned by a bank when the bank is the public school district's depository or otherwise contracts with the public school district?
ISSUE 6. May a public school board member who works for a company that is owned by a bank that is the public school district's depository or otherwise contracts with the public school district participate in school board decisions concerning funds for the bank?
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(c), (d), (e), (f)(i)(ii), (g)(iii), (h), (i), (l), (o), (p)(i)(ii)(iii), (q) and (r) states:
"(c) 'Business' means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a nonprofit corporation or other such entity, association or organization receiving public funds.
(d) 'Business with which he is associated' means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.
(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:
(iii) All school districts.
(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.
(i) 'Income' means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.
(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.
(o) 'Public funds' means money belonging to the government.
(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.
(r) 'Securities' means stocks, bonds, notes, convertible debentures, warrants, evidences of debts or property or other such documents."
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 Opinions No. 99-010-E and No. 00-009-E in response to this request and by attachment incorporates them into this opinion.
Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
ISSUE 1. Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a public board member, including a public school board member, 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, in Waller v. Moore, 604 So. 2d 265 (1992) and Towner v. Moore, 604 So. 2d 1093 (1992), held that a school board member always has a prohibited interest in his or her spouse's contract as anticipated in Constitutional Section 109 and Code Section 25-4-105(2).
Therefore, Constitutional Section 109 and Code Section 25-4-105(2) will absolutely prohibit a public school board member's spouse from being employed, or from contracting in any other way, with his or her school district during the school board member's term and for one year thereafter. [Emphasis added to bold text]
The requestor is cautioned to advise the newly elected/appointed public school board member 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.(1)
ISSUE 2. The requestor is referred to the attached Advisory Opinion No. 99-010-E as it is responsive to the requestor's inquiry set forth in ISSUE 2.
The requestor is advised that the conflict of interest laws set forth in the attached Advisory Opinion No. 99-010-E that prohibit the employment of a spouse of a public school board member in a non-certified position with the public school district will also equally prohibit the employment of a spouse of a public school board member in a certified position with the public school district.(2)
ISSUE 3. Constitutional Section 109 and Code Section 25-4-105(2) prohibit a public school board member from having an interest, direct or indirect, in a contract authorized by the school board during his term and for one year thereafter.
Therefore, Constitutional Section 109 and Code Section 25-4-105(2) absolutely prohibit a newly elected/appointed public school board member's company from selling to the public school district during the school board member's term and for one year thereafter. [Emphasis added to bold text]
Again, the requestor is cautioned to advise the newly elected/appointed public school board member 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.(3)
ISSUE 4. Again, the requestor is referred to the attached Advisory Opinion No. 99-010-E as it is responsive to the requestor's inquiry set forth in ISSUE 4.
Specifically, the requestor is cautioned to advise the newly elected/appointed public school board member that an authorization of the public school board's contracts with their employees, including a new school board member's spouse, not only includes the actual approval of a contract between the parties but also the public school board's annual approval of funding for the compensation of their employees.(4)
Based on the above, Constitutional Section 109 and Code Section 25-4-105(2) will absolutely prohibit the newly elected/appointed public school board member's spouse from retaining her employment position with the public school district. [Emphasis added to bold text]
The violation will occur once the newly elected/appointed public school board member's spouse is paid with funds approved in a budget authorized by the public school district's board of which he is a member. [Emphasis added to bold text]
Again, the requestor is cautioned to advise the newly elected/appointed public school board member 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.(5)
Also, this issue presented by the requestor 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 spouse of a newly elected/appointed public school board member remaining employed with the public school district during the remaining period[s] of the spouse's current employment contract[s] with the public school district after the newly elected/appointed school board member has been sworn into office has the potential of creating suspicion among the public and reflecting unfavorably upon the school district. Therefore, such simultaneous service is contrary to the state's public policy set forth in Code Section 25-4-101 and must be avoided by the public school district, the newly elected/appointed public school board member and his spouse. [Emphasis added to bold text]
The question of whether a public school board may legally enter into a multi-school years contract[s] with its employee is not a subject within the Commission's jurisdiction to issue an advisory opinion.
ISSUE 5 and ISSUE 6. The requestor is referred to the
attached Advisory Opinion No. 00-009-E
as it is responsive to the requestor's inquiries set forth in both ISSUES
5 and 6.
Ronald E. Crowe
Executive Director
1. Towner, supra: "The fact that Mary Towner did not vote to hire her husband, or, in her words, 'attempt to influence members . . . to vote for such employment' is beside the point. Both constitution [Section 109] and statute [Code Section 25-4-105(2)] speak of contracts authorized while she was a member of the board, however she may have voted or abstained. Waller, supra: "Waller argues that his negative vote on hiring his wife insulated him from the violation and liabilities . . . There is no such provision exempting him from the prohibition of Section 109 and 25-4-105(2). It is his interest in his wife's contract, not his vote, that is prohibited."
2. See Waller, supra, Towner, supra.
3. See Waller, supra, Towner, supra.
4. "However, without hesitation we find that logic dictates some manifest interest by appellants herein in the public school employment contracts of their wives. Appellants are directly responsible for the hiring and firing of their spouses. Additionally, the record indicates that these school board members share fully in the process behind which the salaries are awarded to public school teachers in their districts. This is not to say that we question the integrity or fairness of these board members in any way; we simply recognize that each has an indirect interest in his wife's contract which violates the constitutional provision." Smith v. Dorsey, supra.