This Advisory Opinion concerns the following issue 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.
 

May a city public utilities commissioner, who was appointed by a city board of which his father was a member, receive compensation after his father is no longer a city board member?

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:

Code Section 25-4-103(a), (e), (f)(i)(ii), (g)(ii)(v), (h), (l), (p)(i)(ii)(iii) and (q) state:
 

“(a) ‘Authority’ means any component unit of a governmental entity.

(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:
 

(ii) Municipalities;

(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) 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.”

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
 

The Mississippi Ethics Commission issued Opinion No. 98-137-E dated December 7, 1998, on the issue of whether the Board of Mayor and Commissioners of the City could appoint the son of a City Commissioner as a Commissioner of the City Public Utilities Commission, opining that so long as the City Commissioner who is the father of the proposed appointee recused (and removed) himself from any and all deliberations or vote on the appointment of the son, that the City Commissioner received no financial remuneration, and that the City Commissioner received no pecuniary benefit, the appointment was permissible.  We attach a copy of the Ethics Commission Opinion for your reference.

Simultaneously, the Mississippi Attorney General issued an Opinion to me dated December 23, 1998 (Opinion No. 98-0751, 1998 WL 9581667) on the topic of nepotism to the effect that the Board of Mayor and Commissioners of the City could appoint the son of a City Commissioner as a Commissioner of Public Utilities Commission, provided that the proposed nominee to the Public Utilities Commission did not receive any payment or compensation for serving in such position.  We attach a copy of that Opinion herewith for your ease of reference.

The appointment of the son to the Public Utilities Commission was made by the Board of Mayor and Commissioners of the City on January 19, 1999 for a four year term, upon the conditions set forth in both Attorney General’s Opinion No. 98-0751 and Ethic Commission Advisory Opinion No. 98-137-E.  The Public Utility Commissioner has received no payments or compensation for his service since his appointment.

In the municipal elections in the spring and summer of 2001, the City Commissioner who is the father of the Public Utility Commissioner was defeated in his reelection bid.  A new City Commissioner took office from the same Ward on the first Monday of July, 2001 who is unrelated to either the former City Commissioner or the Public Utility Commissioner.  The son of the former City Commissioner continues to serve on the Public Utilities Commission, and his term is scheduled to expire on October 1, 2003.

 
We are familiar with the provisions of Miss. Code Ann. §25-1-53 (Supp. 1998), which provide that no elected or appointed official may take any act which would financially benefit him or any member of his immediate family during his term and for a period of one year thereafter.  On July 2, 2002, the former City Commissioner will have been out of office for a period of one year.

The query raised by the City and the Public Utilities Commission is whether, since the father of the Public Utilities Commissioner is no longer a sitting City Commissioner and has been out of office for a period of one year, may the Public Utilities Commission begin paying the son of the former city Commissioner the same compensation which all other Public Utilities Commissioners are paid, as set by the ordinances of the City and the rules of the Public Utilities Commission?  Please assume for the purposes of this question that there are no other circumstances, other than the father-son relationship, which would preclude the Public Utilities Commissioner from receiving compensation.

The Commission formally adopts Advisory Opinion No. 98-137-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 Ethics Commission’s opinion is as follows.

The Ethics Commission’s previous Advisory Opinion No. 98-137-E instructed the City that the City Commissioner should recuse himself from voting on the appointment of his son as Public Utilities Commissioner to avoid violating the above cited Code Section 25-4-105(1).

Code Section 25-4-105(1) prohibits a city commissioner from using his official position with the city to obtain a pecuniary benefit for his son.  If the City Commissioner recused himself from all actions concerning the son’s appointment as City Utilities Commissioner, the son could have been compensated by the Utilities Commission without violating the conflict of interest laws.  A possible violation of the conflict of interest laws could have occurred based solely on the father’s actions on the son’s appointment rather than the son’s compensation.  Based on the previous opinion, the City Utilities Commission had no authority to withhold the son’s compensation, therefore, the son’s unilateral decision to donate his compensation back to the City Utility Commission had no bearing on the Commission’s opinion.

 
Therefore, the father of the City Public Utilities Commissioner no longer holding office as City Commissioner has no bearing on the Ethics Commission’s opinion as to the compensation of the Public Utilities Commissioner.  The conflict of interest laws did not prohibit the Public Utilities Commissioner from receiving compensation from the Utilities Commission when the father was still a City Commissioner, as long as, the father totally and completely recused himself.  Further, the conflict of interest laws do not now prohibit the Public Utilities Commissioner from receiving compensation from the Utilities Commission as his father is no longer a City Commissioner.

Based upon this Commission’s understanding of the Attorney General’s Opinion attached to the requestor’s letter and  the facts presented by the requestor, the City Public Utilities Commissioner could still be considered to have violated the nepotism statute if compensated.  Therefore, the requestor is advised to contact the Office of the Attorney General concerning Code Section 25-1-53, commonly referred to as the nepotism statute, as the Ethics Commission does not issue opinions in relation to this section of the code.
 
 

Scott Rankin
Executive Director