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 city council employ the stepson of a department head employee upon the department head employee's recommendation to the city council that his stepson be employed by the city to work in the city department headed by the employee?

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

"(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

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

This request follows our recent telephone conversation. As the attorney for the City, I respectfully request the Mississippi Ethics Commission render an opinion on the following set of facts:

A department head employee of the City wants to recommend the hiring of his stepson by the City. If hired, the stepson would be an employee working in the same department as the department head stepfather. The stepson is a married adult. The stepson is financially independent from the mother and the department head stepfather and does not reside with them. If the department head recommends the hiring of his stepson, the matter would be considered by the City Council which has the ultimate responsibility and authority for hiring and firing of employees of the City.

Would the recommendation by the department head stepfather to the City Council to hire his stepson as a city employee constitute an ethics violation?

Would the hiring of the stepson by the City Council as an employee of the City constitute an ethics violation?

The Commission formally adopts Advisory Opinion No. 00-108-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.

Code Section 25-4-105(1), cited above, provides that a public servant, including a department head employee of a city, shall not use his official position to obtain a pecuniary benefit for a relative.

Code Section 25-4-103(q), cited above, defines a relative as a spouse, child or parent. [Emphasis added to bold text]

As set forth in the attached advisory opinion, this Commission has consistently held that for purposes of the conflict of interest laws the designation "a child" encompasses a stepchild.⁽¹⁾

Should the department head employee recommend his stepchild and the city council act affirmatively upon the department head employee's recommendation, then the department head employee will have violated Code Section 25-4-105(1). The department head employee would have used his official position by recommending his relative and the city council's approval of his recommendation of employment would result in a pecuniary benefit for a relative.

Also, it is the Commission's understanding and belief that a supervisor/subordinate relationship would exist between the department head employee and the stepchild, upon the stepchild's employment by the city, wherein the department head employee may transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline the stepchild serving in the subordinate position and/or may at the very least recommend and advise such actions to the city council.

In such a supervisor/subordinate relationship, the department head employee would also violate Code Section 25-4-105(1) in taking any such actions as set forth above that resulted in the stepchild retaining and/or receiving a pecuniary benefit as a city employee.

Actions by the department head employee that would result in a pecuniary benefit for the stepchild if employed by the city would include, but not be limited to, actions that allowed the stepchild to remain employed, be re-employed, receive a raise, receive additional benefits, receive a promotion and/or receive other forms of compensation or income.

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, a department head employee of a city having supervisory authority and responsibility over his stepchild as an employee of the city is a circumstance that can be expected to create suspicion among the public and reflecting unfavorably upon the fair commission. Therefore, such a circumstance should be avoided by the city in order to fully comply with the public policy mandate and public trust obligation imposed by Code Section 25-4-101.

Also, an action by the city to remove or transfer the responsibilities of the department head employee over one employment position so that the particular employment position can be filled by

a relative of the department head employee is a circumstance that results in an appearance of impropriety and a violation of the public trust which is contrary to the public policy mandate set forth in Code Section 25-4-101.

Ronald E. Crowe

Executive Director

1. Also, see prior Ethics Commission Advisory Opinions No. 94-028-E, No. 98-133-E, and No. 00-021-E.