This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on June 14, 2002, basing its approval solely on the facts and circumstances stated herein.
 

Issue 1: May the child of a housing authority commissioner, who lives with the commissioner, be employed by the housing authority?

Issue 2:  May the minor child of a housing authority commissioner, who does not live with the commissioner, be employed by the housing authority?

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)(v), (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:
 

(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.
 

Confirming my telephone conversation with Mitchell Adcock earlier this week, please be advised that this firm represents a Housing Authority.  Our client has asked to request an ethics opinion from your office concerning these matters that follow.

The Housing Authority has five commissioners on its board.  One of the commissioners wishes to have one of his children (who lives at home with him and is a minor) employed by the Housing Authority in a summer job.  Additionally, two other children of this commissioner (who do not live with the commissioner and who are also minors) are employed by the Housing Authority for summer positions.  My questions to you are as follows:

1. May a child of a commissioner (who lives at home with the commissioner) be employed by the Housing Authority; and
2. May a child of a commissioner (who is not living at home with the commissioner) be employed by the Housing Authority?

Of course, my request seeks an opinion as to whether the above employments may be in conflict with the conflict of interest laws of the State of Mississippi.

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

 
Issue 1:  Constitutional Section 109 and Code Section 25-4-105(2), cited above, absolutely prohibit a housing authority commissioner from having an interest, direct or indirect, in any contract authorized by the housing authority of which he is a member during his term and for one year thereafter.

The requestor advised the Commission’s staff that the housing authority commissioner’s child resides with the commissioner. The  housing authority commissioner has an indirect interest in any contract in which the commissioner’s child has an interest if the child resides with the commissioner.

Therefore under such circumstances, the housing authority may not enter into a contract to do summer work with the housing authority commissioner’s child, who resides with the commissioner, during the commissioner’s term and for one (1) year thereafter without the commissioner being in violation of Constitutional Section 109 and Code Section 25-4-105(2).

The requestor is cautioned to advise the commissioner 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.

Issue 2: As stated above, Constitutional Section 109 and Code Section 25-4-105(2)  prohibit a commissioner from having an interest, direct or indirect, in a contract authorized by his housing authority.  Therefore, Constitutional Section 109 and Code Section 25-4-105(2) would prohibit the housing authority’s employment of the commissioner’s child if the commissioner was directly or indirectly interested in the child’s employment.

In order for the commissioner to not be interested in his child’s employment with the housing authority, the commissioner’s child must be totally and completely financially independent from the commissioner.

It is this Commission’s position that a minor child, even if not living with the parent, is not totally and completely financially independent of the parent.  Specifically, the biological father of a child is liable for the reasonable expense of the mother's pregnancy and confinement, the education, necessary support, maintenance and medical expenses of the child.

Therefore, the housing authority may not enter into a contract to do summer work with the housing authority commissioner’s minor child, who does not reside with the commissioner, during the commissioner’s term and for one (1) year thereafter without the commissioner being in violation of Constitutional Section 109 and Code Section 25-4-105(2).
 
Again, the requestor is cautioned to advise the commissioner 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 commissioner’s vote, the authorization by the commissioner’s board nonetheless results in a contract in which the commissioner has a prohibited interest.

In addition, the requestor is cautioned to advise the commissioner to also remain keenly aware of the above cited Code Section 25-4-105(1).

Code Section 25-4-105(1) prohibits a housing authority commissioner from using his official position to obtain a pecuniary benefit for his relative, including a child.
 
 
 
 
 

Scott Rankin
Executive Director