This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 12, 2002, basing its approval solely on the facts and circumstances stated herein.
 

ISSUE 1. May a school board member vote to employ a relative when the relative is not a member of the school board member’s immediate family?

ISSUE 2. May a school board approve the employment of the superintendent of education’s immediate family when the superintendent will not be their immediate supervisor and the recommendation to hire them is presented to the school board by someone other than the Superintendent?

Your opinion request to the Office of the Attorney General dated June 4, 2002, was referred by that Office to the Mississippi Ethics Commission on June 13, 2002, as your request involves the above issues that concern the Mississippi conflict of interest laws.  The Attorney General’s office will be addressing your question concerning the employee recommendation and selection process and the application of the Nepotism Law to the above issues.

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(f)(i)(ii), (g)(iii), (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:
 

(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.

(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 am a school board member and need your opinion on the following issues:

1. If a superintendent will not bring a recommendation, even though it would be in the best interest of the school, to the Board of Trustees because the Board voted not to accept the same recommendation when his wife was principal, can a Board member bring the recommendation to the Board for a vote.

 
2. Is it a conflict of interest for a Board member to vote on the hiring of a relative, even though the relative is not a member of his immediate family?

3. Is it a conflict of interest for the Board to approve the hiring of the Superintendent’s immediate family, even though he will not be their immediate supervisor and the recommendation to hire them is presented to the Board by someone other than the Superintendent?

Your opinion to the above issues is very important inasmuch as the community has and continues to lose confidence in the school administration and its board.

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

ISSUE 1.  The requestor does not specifically identify which relatives are to be considered within the “immediate family” of a school board member.  Therefore to fully address this issue, the Commission will address all relatives in regard to the prohibitions set forth in the state conflict of interest laws.

Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a public school board member from having an interest, direct or indirect, in any contract authorized by the school board of which he or she is a member during his or her term and for one year thereafter.

The Mississippi Supreme Court has held that the above prohibition set forth in both Constitutional Section 109 and Code Section 25-4-105(2) absolutely prohibits a school board from employing the spouse of one of its members.

Also, the requestor is advised that the prohibition set forth in both Constitutional Section 109 and Code Section 25-4-105(2) will absolutely prohibit a school board from employing a minor child of one of its members.  This prohibition will apply regardless of whether the minor child lives in the board member’s household or not.

 
In order for a school board member to not be interested in his child’s employment with the school district, the child must be totally and completely financially independent from the school board member.

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.

As stated above regarding a child, a school district contracting with a relative of a school board member during his or her term or for one year thereafter is prohibited by Constitutional Section 109 and Code Section 25-4-105(2), unless the relative is totally and completely financially independent from the school board member.

Clearly, a relative is not financially independent and free from a school board member’s control and support when the relative lives in the school board member’s household.

Therefore, the requestor is advised that the prohibition set forth in both Constitutional Section 109 and Code Section 25-4-105(2) will absolutely prohibit a school board from employing a relative of one of its members when the relative is living in the school board member’s household.

Constitutional Section 109 and Code Section 25-4-105(2) prohibit a school district employing one of its member’s relatives if the school board member is in any way directly or indirectly interested in the relative’s employment contract.

The facts presented by the requestor do not set forth a specific circumstance for a determination of whether such circumstance would result in one of the school district’s board members having a direct or indirect interest in a relative’s employment contract with the district.

 
However, the following are some examples that would result in a school board member being directly or indirectly interested in a relative’s employment contract with the school district. The relative leasing or renting property from the school board member; the relative being a debtor of the school board member; the relative living on property or in a residence owned, provided by or paid for by the school board member; or, the relative and the school board member co-owning a business or businesses.  The above examples should not be considered as a complete list of circumstances that could result in a school board member being directly or indirectly interested in a relative’s employment contract with the school district in violation of Constitutional Section 109 and Code Section 25-4-105(2).

In response to the requestor’s more specific question regarding a board member voting on the employment of a relative, 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 school board member’s vote or other involvement, the authorization by the school board member’s board, nonetheless, results in a contract in which the school board member has a prohibited interest.

Code Section 25-4-105(1), cited above, prohibits a public servant, including a school board member, from using his or her official position to obtain a pecuniary benefit for his or her relative.  For purposes of the conflict of interest laws and the circumstance being considered herein, a relative is limited to a child or parent.
 
Therefore, a school board member may not in any way be involved in the school board’s decision to employ his or her child or parent should it be determined that the school board member’s child or parent is financially independent from the member and the member is not directly or indirectly interested in the child or parent’s employment contract as discussed above.  In addition, the school board member may not be involved in any decisions of the school board concerning pay raises or the increasing of other benefits that would benefit the school board member’s child or parent should the child or parent be employed by the school district.

To avoid using his or her official position to obtain a pecuniary benefit for a child or parent, the school board member must totally and completely recuse himself or herself from all subject matters providing a pecuniary benefit to the child or parent.

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.
 
Therefore, in answer to the requestor’s specific question, a school board member is prohibited by Code Section 25-4-105(1) from voting on the employment of his or her child or parent by the school district, or for any other matter that provides a pecuniary benefit to the child or parent, if it is determined the child or parent’s employment is not absolutely prohibited by Constitutional Section 109 and Code Section 25-4-105(2) as discussed above. Again, 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).

This 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 school district’s employing of its member’s child or parent has the potential of creating suspicion among the public and reflecting unfavorably upon the school district.  Therefore, to fully comply with the state’s public policy mandate, the school board should avoid such circumstances whenever possible.

It is not as such a violation of the state conflict of interest laws for a school board member to vote on the employment of his or her relative, other than a spouse, child or parent, when the school board member and the relative are financially independent of each other and when the school board member is not interested in the relative’s employment contract with the school district as discussed above.

Notwithstanding the above, the requestor is advised that there is a nepotism law specifically applicable to public school board members found at §37-9-21, 1972 Mississippi Code Annotated (amended), that is not a part of the state conflict of interest laws.  The Attorney General will address more specifically the prohibitions set forth in Code Section 37-9-21 in his formal opinion to you.
 
ISSUE 2. As previously stated, Code Section 25-4-105(1) prohibits a public servant, including a superintendent of education, from using his or her official position to obtain a pecuniary benefit for his or her relative.  For purposes of the conflict of interest laws and the circumstance being considered herein, a relative is limited to a spouse, child or parent.

Therefore, a superintendent of education is prohibited by Code Section 25-4-105(1) from recommending his or her spouse, child or parent for employment with the school district.

Code Section 37-9-17 requires the superintendent of education to recommend to the school board all certificated employees and noninstructional employees.   However, Code Section 37-9-17 allows a school board to establish a policy where the board’s designee, in place of the superintendent of education, is authorized to recommend employment of certificated employees to the school board for no more than two (2) positions for each employment period for each school.

Therefore, a superintendent of education’s spouse, child or parent can be employed as a certificated employee by a school board if the school board has established a policy to authorize the school board’s designee to recommend no more than two (2) positions per employment period for each school and the position of the spouse, child or parent of the superintendent is one such position.

Notwithstanding the above, a superintendent of education must be certain not to use his or her official position, directly or indirectly, to assist his or her spouse, child or parent in being employed by or in retaining employment as a certified employee with the school district and in obtaining raises or other benefits.  In order to do this, a superintendent of education must totally and completely recuse himself or herself from the employment and compensation processes.

A total and complete recusal requires that a superintendent of education not only avoid debating, discussing or taking action on the employment of his or her spouse, child or parent  during the official meeting, but also avoid discussing the subject matter with the school board members, board designee, other 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 in order to properly recuse himself or herself, a superintendent of education must leave the room or area where such discussions, considerations and/or actions take place.  The minutes of the school board should state that the superintendent of education left the meeting by showing him or her absent for the action concerning the employment of his or her spouse, child or parent.

The designee system discussed above only applies to certificated positions. Regarding noninstructional employees, Code Section 37-9-17 states, “Any noninstructional employee employed upon the recommendation of a personnel supervisor or another principal employed by the local school district must have been employed by the local school district at the time the superintendent was elected or appointed to office;  a noninstructional employee employed under this authorization may not be paid compensation in excess of the statewide average compensation for such noninstructional positions with comparable experience, as established by the State Department of Education.” [Emphasis added to bold text]

Thus, the spouse of the superintendent cannot be employed in a noninstructional position unless he or she was employed by the school district prior to the time the superintendent of education was elected or appointed to office.

Assuming a superintendent of education’s spouse, child or parent was employed in a noninstructional position prior to his or her election or appointment, the superintendent of education must be certain not to use his or her official position, directly or indirectly, to assist his or her spouse, child or parent in being re-employed by or in retaining employment with the school district and in obtaining raises or other benefits.  In order to do this, a superintendent of education must totally and completely recuse himself or herself from the employment and compensation processes as described above.

The issue presented by the requestor regarding a superintendent of education’s spouse, child or parent being employed by the school district also must be viewed as it relates to Code Section 25-4-101, set forth above.  As stated 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 school district’s employment of its superintendent of education’s spouse, child or parent has the potential of creating suspicion among the public and reflecting unfavorably upon the school district.   Therefore to fully comply with the state’s public policy mandate, the school board should avoid such circumstances whenever possible.

As to the requestor’s question regarding a superintendent being willing to make a recommendation to the board of trustees as anticipated in Code Section 37-9-17, the requestor is referred to the Office of the Attorney General as this question does not come under the interpretation of the State conflict of interest laws.
 
 

Scott Rankin
Executive Director