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 2, 2001, basing its approval solely on the facts and circumstances stated herein.

May a legislator's spouse be employed by a county board of supervisors at the request of the county judge as a youth court victim/witness coordinator when the victim/witness coordinator position is partially funded by a grant from a state department that was appropriated by the Legislature?

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)(i)(ii)(iii)(iv)(v), (h), (l), (o), (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:

(i) Counties;

(ii) Municipalities;

(iii) All school districts;

(iv) All courts; 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.

(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."

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.

In addition to the facts set forth in the attached letter, the Commission's staff determined that the statement in the requestor's letter that "this is a subgrant that is not a part of the appropriations bill that is voted on by the State Senate" is incorrect. Information obtained from the State Auditor's Office and the Department of Public Safety reveals that the block grant funds in question are in fact included in the bill for the current fiscal year passed by the Legislature making an appropriation to defray the expenses of the Department of Public Safety. Also, the block grant funds are included in the appropriation bill for the Department currently before the Legislature for the upcoming fiscal year. Specifically, the grant funds are included in the part of the appropriation legislation funding the Division of Public Safety Planning, Office of Public Safety Planning, in the major objects of expenditure entitled Subsidies, Loans and Grants.

The Commission formally adopts Advisory Opinion No. 94-149-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 member of the Legislature from having an interest, direct or indirect, in a contract authorized by the Legislature during his term and for one year thereafter.

The Mississippi Supreme Court in Frazier v. State, 504 So. 2d 675 (1987 and in Cassibry v. State, 404 So. 2d 1360 (1981), ruled that an appropriation bill funding programs that allow payments under contracts in which legislators are interested are laws authorizing the contracts.

Also, 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).

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) will prohibit the requestor from being paid with the grant funds in question if the appropriation bill including said funds is approved by the Legislature during her legislator/spouse's term or one year thereafter, unless the large class rule set forth by the State Supreme Court in Frazier is applicable to this situation.

The State Supreme Court in Frazier stated, "If a private business can afford for one of its members to serve in the legislature, that is one thing. A full-time employment of the state is something else. The employment of a Legislator's spouse as one of a large class of state employees poses no such threat . . . There has been no case cited to us from any jurisdiction which suggests a possible conflict of interest because a Legislator's spouse is employed by the state, as one of a large class."

As stated in the attached advisory opinion, it is necessary to consider what was the Court's meaning by "a large class." In Frazier, the Court relied on logic as the basis of its opinion that the Legislator's spouse having an employment contract with a public school authorized by a law passed by the Legislature did not violate the conflict of interest laws. The Court stated, ". . . it simply defies practical wisdom to carry this section [109] to such an extreme."

In the attached advisory opinion, this Commission found that the employment of the spouse of a legislator as an assistant district attorney due to the involvement of an intervening state agency was just as remote from the pertinent legislative action as that of the employment of a public school teacher by a school district or any other state employee by a state agency.

Although a local government employment position may be funded in whole or in part by funds appropriated by the Legislature, the employment of a local government employee by a local government certainly involves an intervening governmental employer making the employment as remote, if not more so, as that of a public school teacher or a state employee. Therefore, this Commission must conclude that until such time as the State Supreme Court provides additional guidance on this issue the "large class rule" set forth in Frazier for public school teachers and state employees also applies to local government employees.

Therefore, it is the Commission's opinion that the requestor's employment in the position of county youth court victim/witness coordinator that is funded in part by grant funds appropriated by the Legislature does not result in the requestor's legislator/spouse being in violation of Constitutional Section 109 and Code Section 25-4-105(2) as the requestor's position is included in the "large class rule" set forth in Frazier.

Notwithstanding the above, the requestor is cautioned to advise her legislator/spouse to remain keenly aware of Code Section 25-4-105(1) and Code Section 25-4-101, both cited above.

Code Section 25-4-105(1) prohibits a public servant, including a legislator, from using his official position to obtain a pecuniary benefit for a relative.

Code Section 25-4-103(q), cited above, defines relative as spouse, child or parent.

Code Section 25-4-101 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.

Therefore, the only way in which the legislator can avoid a violation of Code Section 25-4-105(1) and fully comply with the public policy mandate set forth in Code Section 25-4-101 is to totally and completely recuse himself from any matter coming before the Legislature that concerns the state department providing the funding to the county that partially pays his spouse's salary, especially the state department's appropriation legislation. Also, the legislator should totally and completely recuse himself from all matters coming before the Legislature that concerns the youth court system.

An abstention is a vote with the majority of a governing entity's body 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 an official meeting, but also avoid discussing the subject matter with other 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 body should state the public servant left the meeting by showing him or her absent for that matter.
 

Ronald E. Crowe

Executive Director