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 a newly appointed state agency board member's spouse remain employed with the state agency?

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(b), (e), (f)(i)(ii), (g)(v), (h), (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.

(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:

(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.

(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.

I spoke with you on August 16 requesting your opinion on a potential conflict of interest with one of our newly appointed board members at the State Agency.

An individual was appointed to the Board effective July 1 to serve a 4 year term. We are a state agency, although we receive no external funding.

On August 16 it was brought to my attention that the newly appointed board member's wife is currently employed by the state agency. I understand this is a conflict of interest. What steps does the Board need to take to rectify this situation, and how quickly do we need to move?

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 public board member from having an interest, direct or indirect, in a contract authorized by his board during his term or for one year thereafter.

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).

In addition, the Mississippi Supreme Court, in Frazier v. State, 504 So. 2d 675 (1987), held that an order of a public official's board that appropriates funds that directly or indirectly benefit the public official through a governmental contract is part of the contract authorization process.

Therefore, the state agency board's annual approval of funding for the compensation of their employees by way of the budget process is an authorization of the employment contracts of its employees.

Based on the above, Constitutional Section 109 and Code Section 25-4-105(2) will absolutely prohibit the state agency from employing the new board member's spouse as of the beginning of the upcoming new budget year.

The requestor is cautioned to advise the new board member 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.

It is possible, although not prudent, that the new board member's spouse could remain employed with the state agency during the current budget year without the requestor violating the state conflict of interest laws.

Notwithstanding the above, the requestor is cautioned to advise the new board member that he must remain keenly aware of the Code Section 25-4-105(1), cited above, during his spouse's remaining period of employment during the current budget year coinciding with his serving on the state agency board.

In order to comply with the mandates of Code Section 25-4-105(1), the newly appointed board member must totally and completely recuse himself from any matter coming before the state agency board concerning his spouse during the remaining period of the spouse's employment with the state agency. This would include recusing from all matters concerning the state agency's employees as a whole.

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 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.

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 spouse of an individual who is a newly appointed state agency board member remaining employed with the state agency during the remaining period of the current budget year after the newly appointed state agency board member has been sworn into office has the potential of creating suspicion among the public and reflecting unfavorably upon the state agency.

Also, the newly appointed state agency board members recusing himself from employee matters due to his spouse's employment with the state agency for the remaining period of the current budget year is contrary to the public trust and public policy mandates set forth in Code Section 25-4-101.

Therefore, it is the Commission's recommendation to the state agency, the new board member and the new board member's spouse that the spouse immediately resign as an employee of the state agency so as to fully and completely comply with the public trust and public policy mandates set forth in Code Section 25-4-101; even though, the absolute prohibitions imposed by Constitutional Section 109 and Code Section 25-4-105(2) to the new board member's spouse remaining employed with the state agency require the spouse to resign as an employee of the state agency prior to the beginning of the upcoming new budget year.

Ronald E. Crowe

Executive Director