April 5, 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 April 5, 2002, basing its approval solely on the facts and circumstances stated herein.
Issue 1:May one spouse seek a position on the board of supervisors while the other spouse simultaneously seeks the position of tax assessor/collector for the same county?
Issue 2:May one spouse serve as a member of the board of supervisors and the other spouse simultaneously serve as tax assessor/collector for the same county?
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(f)(i)(ii),
(g)(i), (h), (l) and (p)(i)(ii)(iii) 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:
(i) Counties.
(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.”
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.
This letter is being forwarded to you as my official request for your office to issue to me an official Ethics Opinion based on the facts that are listed below.I am requesting this official Ethics Opinion in my capacity as Alderman for the City.In my capacity as Alderman, I have been presented with some facts for a determination to be made by your office as to whether said facts would violate the Ethics Laws, any other laws of the State of Mississippi or would violate the Mississippi Constitution.
The facts are as follows: A person who lives in the County plans to qualify for and seek a position on the Board of Supervisors of the County, during the 2003 election.Additionally, this person’s spouse is contemplating seeking the position of Tax Assessor/Collector for the County during the 2003 election.
My questions are as follows: 1) Based on the facts above, does it violate the Ethics Laws, any other laws of the State of Mississippi or the Mississippi Constitution for the spouse to seek a position on the Board of Supervisors of the County and the other spouse to simultaneously seek a position for Tax Assessor/Collector of the same county; and
2) Based on the facts above, does it violate the Ethics Laws, any other laws of the State of Mississippi or the Mississippi Constitution for the spouse to serve as a member of the Board of Supervisors of the County and for the other spouse to simultaneously serve as Tax Assessor/Collector of the same County in the event that both of them are elected by the qualified electors of the County during the 2003 election?
The Commission formally adopts Advisory Opinion No. 93-038-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.
Issue 1: The conflict of interest laws do not prohibit one spouse from seeking a position on the board of supervisors in an election while the other spouse simultaneously seeks the position of tax assessor/collector for the same county in the same election.
Issue 2:Also, the conflict of interest laws do not, as such, prohibit one spousefrom holding the elected position of county supervisor while the other spouse simultaneously holds the elected position of tax assessor/collector for the same county.
Constitutional Section 109 and Code Section 25-4-105(2), both cited above, do prohibit a member of a governmental body, such as a member of a board of supervisors, from having an interest, direct or indirect, in a contract authorized by the governmental body of which he is a member during his term and for one year thereafter.Employment is considered a contract for conflict of interest law issues.
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).
However, there is not a self-operating situational violation in this instance in that both positions, county supervisor and county tax assessor/collector, are public offices and thereby not held by contract.[1]As the Supreme Court found in Johnston v. Reeves & Company, 72 So. 925 (Miss. 1916), a public officer does not hold his (or her) official position by contract.
Notwithstanding the above, a circumstance can exist that would cause a violation of Constitutional Section 109 and Code 25-4-105(2) when one spouse is a member of the county board of supervisors and the other spouse is the county tax assessor/collector.
Such a circumstance would involve the existence of a contract authorized by the county board of supervisors that provides a personal and/or pecuniary benefit to the county tax assessor/collector. For example as provided in Code Section 25-3-3, the board of supervisors contracts with a municipality within the county to assess and/or collect taxes and the county tax assessor/collector personally and pecuniarily benefits from the money the municipality pays the county tax assessor/collector’s office for the services rendered under the contract.
The requestor is also cautioned to advise both spouses to remain keenly aware of the above cited Code Section 25-4-105(1).
Code Section 25-4-105(1) prohibits spouses holding public positions, as a supervisor and/or a county tax assessor/collector, from using their positions to obtain a pecuniary benefit for the other.
Therefore, a supervisor may not in any way be involved in the board of supervisor’s decision concerning discretionary decisions, (those not set out and required by law), related to the office of tax assessor/collector that provides a pecuniary benefit to the tax assessor/collector.For example, Code Section 25-3-3 states a board of supervisors may allow the tax assessor/collector to be paid an additional $3,500.00 per year to maintain two full-time offices. [Emphasis added to bold text]
In the above example, to avoid using his official position to obtain a pecuniary benefit for his spouse, the supervisor must totally and completely recuse himself from all subject matters providing a pecuniary benefit to his spouse. 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 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 supervisor that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2).Even without the supervisor’s vote, the authorization by the supervisor’s board nonetheless results in a contract in which the supervisor has a prohibited interest. [Emphasis added to bold text]
The Office of the Attorney General should be contacted regarding possible application of the Nepotism laws and other laws which might address this situation.
Executive Director
“... A public officer, broadly speaking, is a person appointed or elected to perform a designated duty concerning the public.The duty which a municipal policeman is called on to discharge, of course, concerns the public; consequently, broadly speaking, he may be referred to as a public officer.But the fact that his duties concern the public does not, without more, bring him within the provisions of Section 20 and 175 of the Constitution.In order to come within the meaning of these two sections of the Constitution, the officer's duty must be continuing, be 'defined by rules prescribed by law' (Shelby v. Alcorn, 36 Miss. 273, 72 Am.Dec. 169) to be discharged by him in his own right, and not by permission and under the supervision and control of another.State ex rel. Brown v. Christmas, 126 Miss. 358, 88 So. 881; McClure v. Whitney, 120 Miss. 350, 82 So. 259....”