This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 14, 2000, basing its approval solely on the facts and circumstances stated herein.
May a board member of a county school district simultaneously serve as the interim superintendent of a municipal school district located with the county that the county school district serves when the two school districts jointly operate and fund a bus shop and jointly fund an alternative school administered by the municipal school district?
Your opinion request to the Office of the Attorney General dated June 16, 2000, was referred by that Office to the Mississippi Ethics Commission on June 21, 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(f)(i)(ii),
(g)(iii), (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.
(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 seeking an opinion as to whether my employment as the interim superintendent for the Municipal School District presents a conflict of interest because of my service as board member of the County School District. The facts described below indicate strongly that as board member of the County, I would have no "inherent pecuniary interest" or "pecuniary benefit" in anything involving the city schools, including the subject of my contract as interim superintendent; conversely, for my service as interim superintendent, I would have no "inherent pecuniary interest" or "pecuniary benefit" in anything involving the county schools, including the subject of my service as a county school board member.
The Municipal School District is a separate municipal school district governed by a board with four members appointed by the City and a fifth elected member for the part of the County outside the City and within the confines of the Municipal School District. The rest of the County is served by the County School District, where I serve on the board.
The current school superintendent in the city is moving to another job, and the board is beginning a search for a new superintendent, intending to hire one between October 1st of this year and the end of the year. While conducting the search, they have voted to hire me as an interim superintendent.
The two districts are completely separately governed. No issue involving contract, salary, or other job-related issues of the superintendent or interim superintendent in the city schools could come before the county board. The two school districts share two facilities: a bus shop, and an alternative school. The alternative school is funded jointly, but administered by the city.
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, absolutely prohibit a member of a governing body, such as a county school board member, from having an interest, direct or indirect, in any contract authorized by the board of which he is a member during his term and for one year thereafter.(1)
Also, a circumstance exists that causes a violation of Constitutional Section 109 and Code Section 25-4-105(2) should a board member of one governmental entity be employed by a separate governmental entity.
Such a circumstance involves the existence of contracts between the two governmental entities in which the public servant would have an inherent interest and/or would receive a personal or pecuniary benefit.
A superintendent and/or interim superintendent is without question responsible for the overall operation and administration of the school district he serves. This would certainly include the overall operation and administration of the school district's bus shop and alternative school.
Also, a superintendent and/or interim superintendent having the responsibility for the overall operation and administration of the different components of his school district results in his compensation as superintendent and/or interim superintendent being partly based on each of these responsibilities.
Clearly, the county school district's funding of the contracts for the joint operation of the two facilities, especially the alternative school which is administered by the municipal school district, include, either directly or indirectly, the costs associated with the administration of the two facilities. [Emphasis added to bold text]
Therefore, the requestor would have a personal and pecuniary benefit in the contracts for the joint operation of the two facilities, especially the alternative school which is administered by the municipal school district, if he accepts the position of interim superintendent with the municipal school district. [Emphasis added to bold text]
Based on the above, the county school board's authorization of the contracts and/or funding of the two facilities shared by the county school district and the municipal school district will result in the requestor violating Constitutional Section 109 and Code Section 25-4-105(2) should the requestor accept the position of interim superintendent with the municipal school district.
The above finding is based on the Commission's understanding that the contracts and funding related to the operation of the two facilities shared by the county school district and the municipal school district were authorized by the county school board during the requestor's term.
Also, the requestor is advised that he will be prohibited from accepting the interim superintendent position with the municipal school district within one year of his leaving office should he consider resigning from the county school board.
The requestor is advised 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.
Ronald E. Crowe
Executive Director
1. The Mississippi Supreme Court, in Frazier v. State, 504 So . 2d 675 (1987), held that an order of a public official's board that appropriates funds that directly or indirectly benefit the public official through a governmental contract is part of the contract authorization process.