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 county hire the county tax assessor/collector’s spouse to work as a road foreman for the county?

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

“(e) ‘Compensation’ mean money or thing of value received, or to be received, from any person for services rendered.
 
(g) ‘Governmental’ means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties.

(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.

Please be advised that we represent the Board of Supervisors of a County.  In connection with this, the Board has advertised for and interviewed candidates in connection with a road foreman position who would work under the County Road Manager.  This position is hired by the Board of Supervisors.  The candidate that has been selected is the spouse of the County’s Tax Assessor and Collector.  Please advise as to whether the County Board of Supervisors may ethically hire an employee, the spouse of the Tax Assessor and Collector and whether the other spouse may ethically accept the position.

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

It is not as such a violation of the conflict of interest laws for the county to hire the county tax assessor/collector’s spouse as a road foreman, as the county tax assessor/collector does not have administrative or supervisory responsibility for the county road department.

Notwithstanding the above, the requestor is cautioned to advise each spouse that Code Section 25-4-105(1), cited above, would prohibit either of them from using their official positions to obtain a pecuniary benefit for themselves or the other spouse. One spouse supervising or approving/authorizing the compensation, work schedule or performance review of the other spouse would be certain to result in a violation of Code Section 25-4-105(1).
 
The issue presented by the requestor also must be viewed as it relates to Code Section 25-4-101, set forth above. This code section 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.

For example, one spouse having administrative or supervisory oversight of the actions or responsibilities of the other spouse has the potential of creating suspicion among the public and reflecting unfavorably upon their governmental employer. A circumstance where such spousal supervision or oversight occurs in government harms the public trust.  This is especially true when the supervision or oversight involves matters such as approving or authorizing compensation, work schedules, performance reviews or supervision of the other spouse’s work.

 
The public trust requires that checks and balances be provided to assure that public employees remain independent and impartial; that governmental decisions be made within the proper channels; that public service not be used for private gain; and that the public has confidence in the integrity of government. When one spouse is supervising or overseeing the actions of another spouse in government, the checks and balances the public expects and demands are weakened.  Therefore, the county must ensure that spouses employed by the county never have supervisory authority over each other in order to fully and completely comply with the public policy mandate set forth in Code Section 25-4-101.
 
 

Scott Rankin
Executive Director