This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 2, 2003, basing its approval solely on the facts and circumstances stated herein.
 

May a town contract with its municipal court clerk’s spouse to maintain the town cemetery?

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 25-4-101 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(c), (d), (f)(i)(ii), (g)(ii)(iv), (h), (k)(i)(ii)(iii)(iv), (l), (p)(i)(ii)(iii) and (q) states:

“(c) ‘Business’ means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company,  self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a  nonprofit corporation or other such entity, association or organization receiving public funds.

(d) ‘Business with which he is associated’ means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.

(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

(iv) All courts.

(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.

(k) ‘Material financial interest’ means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other.  Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i)  Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

 
(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00);

(iii) The income as an employee of a relative if neither the public servant or relative is an officer, director or partner in the business and any ownership interest would not be deemed material pursuant to subparagraph (i) or (ii) herein; or

(iv) The income of the spouse of a public servant when such spouse is a contractor, subcontractor or vendor with the governmental entity that employs the public servant and the public servant exercises no control, direct or indirect, over the contract between the spouse and such governmental entity.

(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 (3)(a) 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.
 

(3) No public servant shall:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the  governmental entity of which he is a member, officer, employee or agent.”

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 currently employed with a Town as Municipal Court Clerk.  Bids are open for the maintenance of a Cemetery.  Is there a conflict of interest for my spouse to bid on maintenance of the cemetery?

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

Code Section 25-4-105(3)(a), cited above, prohibits a business in which a public servant, such as a municipal court clerk, has a material financial interest from being a contractor, subcontractor or vendor with the governmental entity of which she is an employee. In this instance, the town is the employing governmental entity as defined in the above cited Code Section 25-4-103(g) and (h).

The municipal court clerk’s spouse’s maintenance operation qualifies as a business within the meaning set forth in the above cited Code Section 25-4-103(c). Also, the spouse’s business contract to maintain the town’s cemetery will result in his business being a contractor for purposes of Code Section 25-4-105(3)(a).
 
As set forth in the above cited Code Section 25-4-103(k), a “material financial interest” means a personal and pecuniary interest, direct or indirect, accruing to a public servant or the spouse of the public servant, either individually or in combination with each other.  Therefore, Code Section 25-4-105(3)(a) would prohibit the municipal court clerk’s spouse’s business from being a contractor with the town to provide maintenance for the town’s cemetery, unless the exception set forth in the above cited Code Section 25-4-103(k)(iv) applies.

 
Code Section 25-4-103(k)(iv) provides that a public servant should not be found to have a “material financial interest” when the income as a contractor with the governmental entity that employs the public servant is solely the income of the spouse of the public servant and the public servant exercising no control, direct or indirect, over the contract between the spouse and the governmental entity. [Emphasis added to bold text]

As the town’s municipal court clerk, the requestor is expected to have no direct or indirect control over the contract between the town and the spouse’s business to provide maintenance for the town’s cemetery.  In other words, a  municipal court clerk would not be expected to be involved in 1) the select, review or approval of the contractor to maintain the cemetery for the town; 2) the supervision, monitoring or evaluation of the contractor’s performance; and 3) the payment processes pertaining to a contractor maintaining the town’s cemetery.

If the above understanding regarding the limitation of the duties of the requestor as the town’s municipal court clerk is correct, then the town may contract with the  municipal court clerk’s spouse’s business to maintain the town’s cemetery without the  municipal court clerk violating Code Section 25-4-105(3)(a), as the exception set forth in Code Section 25-4-103(k)(iv) is applicable in this instance.

Notwithstanding the above, the requestor is advised to remain keenly aware of the above cited Code Sections 25-4-105(1) and Code Section 25-4-101.

Code Section 25-4-105(1) prohibits a public servant, including a  municipal court clerk, from using his or her official position to obtain a pecuniary benefit for a business with which he or she is  associated.

The requestor can avoid violating Code Section 25-4-105(1) by totally and completely avoiding any matter related to the town’s contract with the spouse’s business to maintain the town’s cemetery.  Specifically, the requestor must avoid discussing the subject matter with board members, staff or any other person prior to, during and/or after the official meeting involving the bid selection. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

Code Section 25-4-101, set forth above, 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 business owned and operated by a town’s municipal court clerk’s spouse contracting to maintain the town’s cemetery is a circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the town.  Therefore, the municipal court clerk must be careful to avoid any situations that would cause the public concern related to the contract to maintain the town’s cemetery.
 

Scott Rankin
Executive Director