This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 4, 2001, basing its approval solely on the facts and circumstances stated herein.

ISSUE 1. May a school district employ its business manager's brother as assistant business manager and its business manager's sister-in-law as assistant payroll clerk?

ISSUE 2. May one spouse be employed as the school district's assistant business manager and the other spouse be employed as the school district's assistant payroll clerk?

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:

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(b), (e), (g)(iii), (h), (i), (l), (p)(i)(ii)(iii) and (q) states:

"(b) 'Benefit' means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.

(e) 'Compensation' mean money or thing of value received, or to be received, from any person for services rendered.

(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.

(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) 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."

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.

ISSUE 1. The school district's assistant business manager being the brother of the school district's business manager and the school district's assistant payroll clerk being the sister-in-law of the school district's business manager are not violations of the state conflict of interest laws. The reason being that a brother and a sister-in-law are not defined as relatives in the above cited Code Section 25-4-103(q).

ISSUE 2. Code Section 25-4-105(1), cited above, prohibits a public servant, including a school district's assistant business manager, from using his or her official position to obtain a pecuniary benefit for a relative.

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

It is the Commission's understanding and belief that a supervisor/subordinate relationship exists between the school district's assistant business manager and his spouse who is employed in the position of assistant payroll clerk. In such a supervisor/subordinate relationship, it is expected that the spouse with the supervisory authority as assistant business manager of the school district employer can be expected to be involved in decisions and recommendations pertaining to transferring, suspending, laying off, recalling, promoting, discharging, assigning, rewarding, or disciplining business office personnel including his spouse serving in the subordinate position of assistant payroll clerk.

If this instance is such a supervisor/subordinate relationship, then Code Section 25-4-105(1) will prohibit the school district's assistant business manager from taking any such actions as set forth above that would result in his spouse as the school district's assistant payroll clerk retaining and/or receiving a pecuniary benefit.

Actions by the assistant business manager that would result in a pecuniary benefit for his spouse would include, but not be limited to, actions that allowed her to remain employed, be re-employed, receive a raise, receive additional benefits, earn overtime, receive a promotion and/or receive other forms of compensation or income.

ISSUE 2 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, one spouse having supervisory authority and responsibility over the other spouse as employees of a governmental entity, such as a school district, is a circumstance that can be expected to create suspicion among the public and reflect unfavorably upon the school district. Therefore, such a circumstance should be avoided in order to fully comply with the public policy mandate and public trust obligation imposed by Code Section 25-4-101.

The Nepotism Law, §25-1-53, 1972 MCA, is an area of state law outside the jurisdiction of the Commission. The requestor is advised to contact the Office of the Attorney General concerning how the Nepotism Law may affect the above issues.
 

Ronald E. Crowe

Executive Director