May 3, 2002
This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 3, 2002, basing its approval solely on the facts and circumstances stated herein.
May an individual employed with the state Department of Human Services also serve on a county school board?
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(g)(i)(v),
(h), (l), (m) and (p)(i)(ii)(iii) states:
“(g) ‘Governmental’ means the state and all political entities thereof, both collectively and separately, including but not limited to:
(i) Counties; and(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.
(m) ‘Person’ means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.
(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),
(2) and (5) 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.
(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information.”
Pertinent facts and circumstances provided by the requestor, absent
identifying data, are set forth as follows and considered a part of this
opinion.
I was elected as a Public School Board Member in the County in November, 1989.I was recently hired as a Full-time Social Worker for the County Department of Human Service.The question of my concern is whether or not I can be employed by the Department of Human Service and serve on the school board at the same time?
The Commission formally adopts Advisory Opinion No. 00-116-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.
The state conflict of interest laws do not as such prohibit an individual from serving as a county school board member while simultaneously being an employee of the Department of Human Services.This is with the understanding that a state employee serving as a county school board member may not perform the duties and responsibilities of a school board member when on duty with the state and being paid by the state.In other words, a state employee serving as a school board member must request and receive leave from his state agency employer when performing his or her duties and responsibilities as a school board member.
Notwithstanding the above, the requestor is advised to remain keenly aware of the above cited Code Section 25-4-105(1) and (5).
Code Section 25-4-105(1) prohibits a public servant, including a county school board member and/or a state employee, from using his position to obtain a pecuniary benefit for himself.
Therefore, the individual as a county school board member should totally and completely recuse himself from any matter coming before the county school board concerning his state agency employer.
The requestor is advised that an abstention is a vote with the majority of a governmental board and therefore does not qualify as a recusal.
A total and complete recusal requires that the individual not only avoid debating, discussing or taking action on such matters during an official board 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 individual must leave the room or area where such discussions, considerations and/or actions take place.The minutes of the governmental board should state the individual left the meeting by showing him absent for that matter.
Code Section 25-4-105(5) prohibits a public servant, including a county school board member and/or state employee, from usingnonpublic information gained by reason of the public servant’s official position or employment in any way that could provide a pecuniary benefit to any other person.As defined in the above cited Code Section 25-4-103(m), a “person” would include, in this instance, the county school district that the individual serves as a county school board member or the state agency presently employing the requestor.
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 unfavorablyupon 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.
An individual serving simultaneously as a county school board member and as a state employee with the duties described in the requestor’s letter certainly has the potential of creating suspicion among the public and reflecting unfavorably upon the state agency and the county school district, should the individual become involved, either directly or indirectly, with his county school board by way of his duties and responsibilities as a state employee or become involved, directly or indirectly, with his state agency by way of his duties and responsibilities as a county school board member.
Therefore, Code Section 25-4-101 is another reason why the individual as a county school board member must totally and completely recuse himself from any matter coming before his county school board that concerns his state agency employer or why the individual as a state employee must totally and completely recuse himself from any programs or services ofhis state agency employer that concern the county school district he serves as a board member.
In addition, the requestor is advised that a circumstance can exist that would cause a violation of Constitutional Section 109 and Code Section 25-4-105(2), both cited above, should a county school board member be employed by a state agency.
Such a circumstance involves the existence of contracts between the two governmental entities in which the public servant would have an inherent interest and/or a private pecuniary benefit.
Constitutional Section 109 and Code Section 25-4-105(2) would prohibit a county school board member from directly or indirectly having an inherent interest and/or receiving a pecuniary benefit from his county school district or his state agency employer as a result of any contracts existing between the two governmental entities.
The requestor is advised 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.
The requestor is also advised to seek an official opinion from the Attorney General in regard to the prohibition set forth in Section 43-1-13, 1972 Mississippi Code Annotated (amended), against employees of the Department of Human Services (state welfare department) taking part in political activities.
The requestor is also advised to contact the federal government concerning whether The Hatch Act would prohibit the county school board member from holding an elected position while an employee of the Department of Human Services receiving federal funding.The Hatch Act is a federal law and, therefore, not subject to interpretation by the Commission.The requestor should contact the United States Office of Special Counsel at 1-800-854-2824, in Washington, D.C., regarding questions concerning The Hatch Act.
Scott Rankin
Executive Director