This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 7, 2001, basing its approval solely on the facts and circumstances stated herein.

May an alderman's father be employed part-time by the municipality?

Your opinion request to the Office of the Attorney General dated August 22, 2001, was referred by that Office to the Mississippi Ethics Commission on August 23, 2001, as your request involves the above issue that concern the Mississippi conflict of interest laws.

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.

Your assistance is required regarding the following question:

Can a Board of Alderman's father work for the city on a part time basis? The father is retired and cuts grass for the city two or three days per week, as needed.

Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.

In order for the alderman to avoid a violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2), the alderman's father must be totally and completely financially independent from the alderman and the alderman must have no interest, direct or indirect, in the father's employment contract with the municipality.

The questions of whether the alderman's father is financially dependent on the alderman or the alderman has an interest in the father's employment contract with the municipality are critical in determining if there is an absolute conflict of interest or if there is not an absolute conflict of interest what the alderman must do to avoid a conflict of interest from occurring.

The question of whether a governmental board member and his relative are financially dependent upon each other requires an evaluation of all the facts and circumstances.

Certainly, there would be the required financial dependancy between the alderman and the father should they live in the same household or be receiving other financial assistance from each other. However, the facts presented by the requestor are not sufficient to make a determination of the financial dependancy existing between the alderman and the father.

In addition, the facts submitted by the requestor are not sufficient to determine if the alderman would have an interest, direct or indirect, in his father's employment contract with the municipality 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 father's employment contract with the municipality. The father leased or rented property from the alderman; was a debtor 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 his father's employment contract with the municipality.

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) would prohibit the alderman's father from being employed with the municipality, part-time or otherwise, if the alderman has an interest, direct or indirect, in the father's employment contract as described above.
 

The requestor is cautioned to advise the alderman that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2). Even without a board member's vote, the authorization by his board nonetheless results in a contract in which the board member has a prohibited interest.

In circumstances where an alderman does not have a prohibited interest in his financially independent father's employment with the municipality he serves, the alderman still may violate the state conflict of interest laws. Specifically, the requestor is cautioned to advise the alderman to remain keenly aware of the above cited Code Section 25-4-105(1) and Code Section 25-4-101.

Code Section 25-4-105(1) prohibits an alderman from using his official position to obtain a pecuniary benefit for his father. To avoid using his official position to obtain a pecuniary benefit for his father, an alderman must totally and completely recuse himself from subject matters providing a pecuniary benefit to his father.

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 that the 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 other 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 in order 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 board should state the public servant left the meeting by showing him or her absent for that matter.

Therefore, the alderman would be required to recuse himself from any action coming before the board of aldermen that would result in an increase in his father's compensation or fringe benefits as an employee of the municipality or that would result in a promotion or re-employment with the municipality.

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 it is 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, an alderman's father being employed by the municipality the alderman serves has the potential of creating suspicion among the public and reflecting unfavorably upon the county. Therefore, such a circumstance should be avoided whenever possible.

Again, the requestor is cautioned to advise the alderman that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2).

Whether the state nepotism statute set forth in Section 25-1-53, 1972 Mississippi Code Annotated, would apply in this instance is a matter for consideration by the State Attorney General's Office.

Ronald E. Crowe

Executive Director