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 the Office of State Aid Road Construction employ the spouse of the Department of Transportation’s chief engineer?

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), (g)(v), (h), (l), (p)(i)(ii)(iii) and (q) states:
 

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

(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) 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.
 

I have recently been appointed to serve as the Chief Engineer of the Mississippi Department of Transportation Department and will have the duties and responsibilities as set forth in Section 65-1-11, Miss. Code Ann., and I am requesting an official opinion as to whether it would be a violation of the ethics and governments statutes (Section 25-4-101 et seq., Miss. Code Ann.) Or the nepotism statute (Section 25-1-53, Miss. Code Ann.) Or any other statute for my spouse to be employed within the Office of State Aid Road Construction.

 
The Mississippi Transportation Commission consists of three elected members as set forth in Section 65-1-3, Miss. Code Ann. and deal primarily with the maintenance and construction of the state highways of Mississippi.  Section 65-1-2, Miss. Code Ann. provides for the creation of the Mississippi Department of Transportation which is the operational arm of the Mississippi Transportation Commission.  Section 65-1-2, Miss. Code Ann. provides that the Mississippi Department of Transportation consists of an Office of Administrative Services, an Office of Highways, an Office of State Aid Road Construction, an Office of Intermodal Planning and an Office of Enforcement.  Section 65-1-2(8), Miss. Code Ann. provides that, “The powers, duties and responsibilities of the State Aid Engineer and the Office of State Aid Road Construction are transferred to the Mississippi Department of Transportation.”

Section 65-1-10, Miss. Code Ann. created the position of Executive Director with the duties as stated therein.  Section 65-1-11, Miss. Code Ann. created the position of Chief Engineer and contains the following language: “The chief engineer shall also be the deputy executive director of the transportation department and shall act as the executive director in case of the illness or disability of the executive director or his absence from the state.  The chief engineer while acting as executive director of the transportation department shall be vested with the same power and authority as the executive director himself.”

Although, the Office of the State Aid Road Construction is to be created within the Mississippi Department of Transportation and headed by the State Aid Engineer, the State Aid Engineer is appointed not by the Mississippi Transportation Commission or its Executive Director, but by the Governor.  Section 65-9-9, Miss. Code Ann.  That statute also provides that the State Aid Engineer “shall be authorized to employ assistant state aid engineers, together with such other engineers, employees and other assistants as may be necessary to carry out the terms of this chapter, all of whom may be removed at any time by the State Aid Engineer.”  The statute also provides that the salaries of the State Aid Engineer and his assistants “shall be paid from the State Aid Road Fund in the State Treasury prior to allocation to the several counties, by requisition drawn by the State Aid Engineer directed to the Department of Finance and Administration...”

 
Thus, although the Office of State Aid Road Construction is an office within the Mississippi Department of Transportation, neither the Mississippi Transportation Commissioners, the Executive Director of the Mississippi Department of Transportation nor the Chief Engineer of the Mississippi Department of Transportation has the authority to hire or fire the State Aid Engineer or any assistants or employees.  The Office of the State Aid Road Construction keeps its own personnel files which are totally separate and apart fro the personnel files of the Mississippi Department of Transportation, and the Office of the State Aid Road Construction has its own separate budget.

As the Chief Engineer of the Mississippi Department of Transportation does not and cannot hire or fire any employee of the State Aid Engineer and State Aid Engineers  and his employees are paid from a fund separate and apart from the funds of the Mississippi Transportation Commission would it be a violation of Mississippi’s ethics in government, nepotism or other statutes for the spouse of the Chief Engineer of the Mississippi Department of Transportation to accept employment in the Office of State Aid Road Construction and to work under the supervision of the State Aid Engineer?

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

The Department of Transportation and the Office of State Aid Road Construction are separate governing authorities for purposes of the conflict of interest laws as the Office of State Aid Road Construction’s executive director is appointed by the Governor, as set forth in Code Section 65-9-9, 1972 Miss. Code Annotated (amended), not the Transportation Commission which has authority over the Department of Transportation, including the appointment of its executive director and chief engineer.  Within Code Section 65-9-5, 1972 Miss. Code Annotated (amended), the Office of State Aid Road Construction executive director has the authority to administer and manage all duties, powers and responsibilities granted to the Office of State Aid Road Construction.  In addition, the Office of State Aid Road Construction is funded independently from the Department of Transportation by the Legislature through a separate appropriation bill giving it the sole authority to expend its funds.

Based on these facts, the Office of State Aid Road Construction is not prohibited by the conflict of interest laws from employing the spouse of a Department of Transportation chief engineer.

Notwithstanding the above, a Department of Transportation’s chief engineer whose spouse is hired by the Office of State Aid Road Construction must remain keenly aware of the above cited Code Section 25-4-105(1).

Code Section 25-4-105(1) prohibits public servants, including a Department of Transportation chief engineer, from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business with which they are associated.

 
To avoid  using their official positions to obtain a pecuniary benefit, the public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests.  This would specifically apply to the hiring and employment of the Department of Transportation chief engineer’s spouse by the Office of State Aid Road Construction.

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 meetings, but also avoid discussing the subject matter with Transportation Commission members, Department of Transportation employees, Office of State Aid Road Construction staff or any other persons.  This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.
 
 
 

Scott Rankin
Executive Director