This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 6, 2002, basing its approval solely on the facts and circumstances stated herein.
 

May a school board contract with a regional service program that in turn will assign a school board member’s spouse to assist in the school district’s early head start program?

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(e), (f)(i)(ii), (g)(iii), (h), (p)(i)(ii)(iii) and (q) state:
 

“(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:
 

(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.

(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(2) states:
 

“(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.
 

My purpose in writing to you today is to request an opinion from an ethical and/or legal perspective on any conflict that may exist in a situation whereby an active school board member has a wife who is a member of a national service program [administered] through the Mississippi regional service program, located at a State University.  The member’s wife has been considered for placement by the regional service program at an early head start program in our school district for which the district has fiscal management responsibilities.

The board member’s wife receives no compensation of any kind from the district.  However, the school district does enter into an agreement with the regional service program to supply the services of individuals as the national service program works and pays a fee of $2,500 to the regional program for each local program member requested and assigned to the school district.

We are seeking your help and the help of your office in determining if there are ethical and/or legal concerns associated with this matter.  I have enclosed for your review materials related to the national service program that may be of assistance to you in reaching a conclusion.

Based on additional information supplied by the requestor, the school board member’s spouse will receive a living allowance and an educational award by the national service program for the work performed on behalf of the program.

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

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

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).

In Frazier v. State, 504 So. 2d 675, (Miss. 1987), the Mississippi Supreme Court set forth the following four elements necessary to apply the Constitutional Section 109 prohibition, and thereby the Code Section 25-4-105(2) prohibition:
 
 

1. Is there a governmental contract with the state, county, municipality or district?

2. Does the public officer have an interest, direct or indirect, in the contract?

3. Is the contract authorized by a law passed or order made by a board or public body
            of which the public officer is a member?

4. Was the authorizing law or order passed during the public officer’s term or within
            one year after the expiration (or termination) of such term?

The requestor’s facts clearly reveal that the school board has authorized a contract with the regional service program. Specifically, the school board has agreed that the school district will pay the regional service program $2,500.00 per each local program member requested and assigned to the school district and the regional service program has agreed to provide individuals for the school district’s early head start program.  Therefore, elements 1 and 3, as cited above, are clearly met.

Next regarding element 2, the school board member’s spouse would have a direct interest, and thereby, the school board member would have an indirect interest in the school board’s contract with the regional service program which will assign the school board member’s spouse to assist in the school district’s early head start program. The school board member’s spouse’s interest in the regional service program contract arises from the personal and pecuniary benefit derived from the living allowance and education award provided by the national service program for the work performed on behalf of the program.

The final element will be met when the regional service center contract is authorized by the school board during the school board member’s term or one year after the expiration of that term.

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) will absolutely prohibit the school board member’s spouse from performing work and receiving living allowances and education awards provided by the national service program related to the regional service program’s contract with the school district concerning the school district’s early head start program

The requestor is cautioned to advise the school board member 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.
 
 
 
 

Scott Rankin
Executive Director