February 1, 2002
This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 1, 2002, basing its approval solely on the facts and circumstances stated herein.
May the mayor and board of aldermen appoint an individual to the board of trustees of the municipal school district when the individual’s spouse ceased to be employed by the municipal school district prior to the individual’s appointment?
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 25-4-103
(e), (f)(i)(ii), (g)(iii), (h), (i), (o), (p)(i)(ii)(iii), and (q) states:
(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:(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.(o) “Public funds” means money belonging to the government.(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.”
“(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.”
Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.
The requestor’s facts show that the potential school board member’s spouse has already resigned her school district position which is well prior to his term on the school board beginning should he be appointed by the mayor and board of aldermen. Therefore, the municipal school board will not have contracted with the potential school board member’s spouse during his term, or within one year thereafter, in violation of Constitutional Section 109 and Code Section 25-4-105(2).
There
will be no conflict of interest if the mayor and board of aldermen appoint
the individual to the municipal school board as his spouse terminated her
employment with the municipal school district prior to his appointment.
However, if appointed, the newly appointed municipal school board member
should be advised that the municipal school board will be unable to contract
with his spouse, i.e. her work for the district, during his term of office
and for one year thereafter.
Based on the above, Constitutional Section 109 and Code Section 25-4-105(2) will prohibita public school board member’s spouse from being employed, or from contracting in any other way, with his or her school district during the school board member’s term and for one year thereafter.
Therefore, Constitutional Section 109 and Code Section 25-4-105(2) will absolutely prohibit the spouse of the individual being considered for the appointment to the municipal school board by the mayor and board of aldermen from being re-employed with the municipal school district during his term, or within one year thereafter, should he be appointed.
The requestor
is cautioned to advise the newly appointed municipal school board member
that a recusal or an abstention will not prevent a violation of Constitutional
Section 109 and Code Section 25-4-105(2)
in the case of any future employment of his spouse. 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.[1]
Scott Rankin
Executive
Director