This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 1, 2000, basing its approval solely on the facts and circumstances stated herein.

May an individual's spouse continue in the city's employ as a police officer if the individual is elected to the city's board of aldermen?

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)(ii), (h), (p)(i)(ii)(iii) and (q) 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:

(ii) Municipalities.

(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.

(q) 'Relative' means the spouse, child or parent."

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 considering becoming a candidate for the public office of Alderman for the City in the next City election. I am employed with the Casino, and my wife is employed as a Police Officer with the City Police Department.

I recently contacted the State Attorney General's office for information on whether or not my wife would have to resign her employment with the City in order for me to serve as an elected Alderman. The response that I received from the Attorney General's office was that my wife's employment as a Police Officer would not be in violation of the nepotism law as per the Mississippi Code if I was elected to the Board of Aldermen. However, the Attorney General's office advised me to contact the Mississippi Ethics Commission for an opinion regarding conflict of interest and use of office.

My question is: If I were elected to the Board of Aldermen would my wife be required to resign her employment with the City due to a conflict of interest?

If you determine that a conflict of interest would exist, please advise at what point in the election process my wife would have to resign her employment with the City in order for me to serve as an Alderman.

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 city's employment of one of its alderman's spouses during the alderman's term and for one year thereafter. [Emphasis added]

Both the Commission and the Courts of this state have long held that government employment is held by contract, whether written or verbal. This is especially true under Code Section 25-4-103(f)(i)(ii), cited above, which is the definition of "contract" for the state conflict of interest laws.

In this instance, the spouse's employment as a police officer will be authorized by the board of aldermen of which the requestor will be a member if the requestor is elected. In a code chartered municipality the newly elected board of aldermen must rehire the employees. Also, the city's employees will be paid under a budget to be approved by the board of aldermen. Therefore, the spouse cannot be paid until the city board of which the requestor will be a part has rehired the city's employees and/or later approved a budget including the spouse's compensation.

If the requestor is elected to the board of aldermen, the requestor's spouse must resign from the city's police department prior to the newly elected board of aldermen rehiring the city's employees and/or the employees being compensated through a budget having been approved by the newly elected board of aldermen.

It seems obvious that the rehiring of the city's employees would occur at the first meeting of the newly elected board of aldermen. Therefore, the spouse would need to resign from her employment with the city prior to the first meeting of the newly elected board of aldermen.

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