This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 2, 2001, basing its approval solely on the facts and circumstances stated herein.
May a city purchase a historical property from the estate of the mother of an alderman's former spouse when the alderman's adult child is an heir of the estate and will share in the proceeds from the sale of the historical property?
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(f)(i)(ii), (g)(ii), (h), (l), (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.
(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 in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of 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 an alderman from having an interest, direct or indirect, in any contract authorized by the alderman's board during the alderman's term and for one year thereafter.
Certainly, an alderman would have a prohibited interest in the city's purchase of property from an estate in which the alderman's current spouse had an interest.(1)
Also, an alderman would have a prohibited interest in the city's purchase of property from an estate in which the alderman's former spouse had an interest if the alderman also had an interest, direct or indirect. As an example, the alderman would have a prohibited interest if the alderman was still receiving child support payments or other support payments from the former spouse.
However, the facts in this instance reveal that the requestor would not violate Constitutional Section 109 and Code Section 25-4-105(2) if the board of aldermen authorized the purchase of the historical property because of the alderman's former spouse's interest in the historical property.
In regard to the requestor's child's interest in the historical property, the requestor is advised as follows.
As stated above, Constitutional Section 109 and Code Section 25-4-105(2) prohibit an alderman from having an interest, direct or indirect, in any contract authorized by the alderman's board during the alderman's term and for one year thereafter.
Therefore, Constitutional Section 109 and Code Section 25-4-105(2) would prohibit the city's contracting to purchase the historical property from the estate in which the requestor's child is an heir if the requestor was also directly or indirectly interested in the purchase contract. In order for the requestor to avoid a violation of Constitutional Section 109 and Code Section 25-4-105(2), the requestor's child must be totally and completely financially independent from the requestor and the requestor must have no interest, direct or indirect, in the purchase contract.
Obviously, a child would be financially dependent on a public board member should the child live in the board member's household or be receiving other financial assistance from the board member. In this instance, the requestor's facts clearly reveal that the child does not reside with the requestor as the child and her family reside in another state and the child and her spouse are gainfully employed.
Notwithstanding the above, other circumstances could result in the requestor having an interest, direct or indirect, in the purchase contract in violation of Constitutional Section 109 and Code Section 25-4-105(2) because of the requestor's child's interest. The following are some examples that could result in the requestor having an interest, direct or indirect, in the purchase contract between the city and the estate due to the requestor's child's interest. The child leased or rented property from the requestor; was a debtor of the requestor; lived on property owned by the requestor; or, co-owned a business with the requestor. The above examples should not be considered as a complete list of circumstances that could result in the requestor having an interest, direct or indirect, in the purchase contract between the city and the estate.
If the facts and circumstances are sufficient to show that the requestor would not have an interest, direct or indirect, in the purchase contract between the city and the estate due to the child's interest, the requestor must still remain keenly aware of Code Section 25-4-105(1) and Code Section 25-4-101.
Code Section 25-4-105(1), cited above, prohibits a public servant, including an alderman, from using his or her position to obtain a pecuniary benefit for a child.
Therefore, the requestor may not in any way be involved in the board of aldermen's decision to purchase the historical property from the estate in order to avoid violating Code Section 25-4-105(1).
As the requestor properly noted in the attached request letter, a total and complete recusal is the appropriate way to avoid violating Code Section 25-4-105(1).
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 a 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 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, a 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.
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.
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.
Clearly, the city's purchase of the historical property from the estate in which the requestor's child has an interest as an heir has the potential of creating suspicion among the public and reflecting unfavorably upon the city. Therefore, this is another reason why the requestor must totally and completely recuse herself from all discussions, actions and decisions concerning city's purchase of the historical property from the estate.
Ronald E. Crowe
Executive Director
1. In Smith v. Dorsey, 530 So. 2d 5 (1988), the Mississippi Supreme Court held a public official has an indirect prohibited interest in a contract in which the public official's spouse has a direct interest for purposes of Constitutional Section 109 and Code Section 25-4-105(2).