This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 14, 2003, basing its approval solely on the facts and circumstances stated herein.
 

May a school district continue to furnish teachers to a city operated community center to tutor students when the assistant director of the city community center is a newly elected board member of the school district?

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)(ii)(iii), (h), (l) and (p)(i)(ii)(iii) 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:

(ii) Municipalities; and

(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.”

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.
 

Please be advised that the undersigned represents a school district.  The City owns and operates a Community Center.  For several years the school district has furnished a teacher for the Community Center who has helped tutor students during the day at the Community Center who have either been suspended or expelled or have violated the city curfew or been referred to the center by the Youth Court.  In addition, the school district has recently been advised that it is eligible for grant funds which will enable the school district to provide additional personnel at the Community Center to help tutor children after school.

A newly elected school board member who will be sworn in this month is a city employee who serves as the Assistant Director at the Community Center.  We have two questions in regard to this situation.  First, would there be any conflict of interest problems with the school district continuing the program already in place of the school district furnishing a teacher at the Community Center during the day to tutor students?  Second, would there be any conflict of interest problem with the school district expanding its participation at the Community Center this year by providing additional personnel to tutor students after school utilizing grant funds for which the school district is now eligible.

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

 
The conflict of interest laws will not as such prohibit the school district in this instance from continuing to furnish teachers to the city operated community center employing the newly elected school board member as the assistant director of the city community center.  This opinion is based on the two entities both being public in nature and the board member/assistant director not receiving a personal or a pecuniary interest from the school district supplying the teachers to the community center.

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.

However, the requestor’s facts clearly reveal that the school board has already authorized a contract with the city to supply teachers to tutor students in the community center prior to the school board member taking office.  Based on these facts, the school board member would not appear to receive an additional personal or pecuniary interest through the school district’s continued participation in the program.  Should the school board member, as assistant director of the community center, receive a personal or pecuniary interest through his school board’s approval of the existing or expanded services to the community center, the board member would be certain to violate Constitutional Section 109 and Code Section 25-4-105(2).

Examples of situations that would include the school board member securing a personal or pecuniary interest from his school board’s continued participation in or expansion of the community center’s tutoring program would include, but not be limited, to the tutoring services being a necessity for the continued operation of the community center, and/or the school board member receiving a raise or promotion based on the school district’s participation in the tutoring program.

The requestor is cautioned to advise the 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 the board member’s vote or other participation, the authorization by the board, nonetheless, results in a contract in which the board member has a prohibited interest.

Notwithstanding the above, the State’s public policy mandate set forth in Code Section 25-4-101, cited above, is a sufficient reason in this Commission’s opinion for the school board member to recuse himself from all discussion and votes before the school board related to the city community center’s tutoring program.

Code Section 25-4-101 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.
 
 
Specifically, Code Section 25-4-101, in part, 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.”

Clearly, the school board member’s employment as assistant director of the community center, which is supplied teachers by the school district to assist in a city tutoring program, can be expected to create suspicion among the public and reflect unfavorably upon the public servant’s governmental entities as there could be a question of a division of loyalty on the part of the public servant.  While both entities, in this case, are public, a public servant should never place himself or be placed by his governmental entity in a situation where his personal interest appears to be competing with his public interest.

Therefore, the Commission recommends the school board member recuse himself from discussing or voting on matters related to the city community center so as to fully and completely comply with the public policy mandate set forth in Code Section 25-4-101.

A total and complete recusal requires that the 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 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 public servant must leave the room or area where such discussions, considerations and/or actions take place.  The minutes of the governmental entity’s board should state the public servant left the meeting by showing him or her absent for that matter.
 
 
 

Scott Rankin
Executive Director