This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on August 3, 2001, basing its approval solely on the facts and circumstances stated herein.

May a municipality continue to purchase from a hardware store recently purchased by the son-in-law of a newly elected alderman?

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 provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.

On behalf of the Mayor and Board of Aldermen of the City, I would like to request an advisory opinion concerning the City making purchases from a hardware store owned by the son-in-law of a City Alderman. The store has just recently been purchased by the son-in-law (7-16-01) and the Alderman was elected in the June election.

If the Alderman has no financial interest in the store, is it permissible for the City to continue purchasing from this store?

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 municipality's alderman from having an interest, direct or indirect, in a contract authorized by the municipality's board of aldermen.

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) would prohibit the city's contracting with the alderman's son-in-law's business if the alderman was directly or indirectly interested in the son-in-law's business' contracts. In order for the alderman to avoid a violation of Constitutional Section 109 and Code Section 25-4-105(2), the alderman must be totally and completely financially independent from his son-in-law and daughter and have no interest, direct or indirect, in the son-in-law's business' contracts with the city.

The daughter and son-in-law would be financially dependent on the alderman should they live in his household or be receiving other financial assistance from him.

The facts submitted by the requestor are not sufficient to determine if the alderman has an interest, direct or indirect, in his son-in-law's business' contracts with the city in violation of Constitutional Section 109 and Code Section 25-4-105(2). However, the following are some examples that could result in the alderman having an interest, direct or indirect, in his son-in-law's business' contracts with the city. The daughter and son-in-law leased or rented property from the alderman; were debtors of the alderman; lived on property owned by the alderman; or, co-owned a business with the alderman. The above examples should not be considered as a complete list of circumstances that could result in the alderman having an interest, direct or indirect, in the son-in-law's business' contracts with the city.

Notwithstanding the above, if the facts and circumstances are determined to be sufficient to show that the alderman would not have an interest, direct or indirect, in his son-in-law's business' contracts with the city that would violate Constitutional Section 109 and Code Section 25-4-105(2), the alderman 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 an alderman from using his position to obtain a pecuniary benefit for his children.

The requestor is advised that a benefit accruing to one spouse accrues equally to the other. Therefore, any pecuniary benefit to the alderman's son-in-law accrues to the alderman's daughter.

Therefore, the alderman may not in any way be involved in the city's decision to purchase from or pay the claims of his son-in-law's hardware store should it be determined that the alderman's son-in-law and daughter are financially independent from him and that the alderman would have no interest, direct or indirect, in the city's contracts to purchase from the son-in-law's hardware store.

To avoid using his official position to obtain a pecuniary benefit for his relatives, the alderman must totally and completely recuse himself from all subject matters providing a pecuniary benefit to his son-in-law.

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 cautioned to advise the alderman 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 contracting with the hardware store owned by the alderman's son-in-law has the potential of creating suspicion among the public and reflecting unfavorably upon the city.

Therefore, this is another reason why the alderman must totally and completely recuse himself from all discussions, actions and decisions concerning the city's contracts to purchase from the son-in-law's hardware store.

Ronald E. Crowe

Executive Director