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 an individual employed with a planning and development district remain employed after marrying the district’s executive director’s child?

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)(v), (h), (i), (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:

(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.

(i) ‘Income’ means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.

(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 represent a Planning & Development District (PDD) a governmental entity, and I am writing on its behalf to request your opinion on the following issue.

In 2001, the Executive Director (“Director”) of PDD hired a qualifed applicant (“Employee”) to perform maintenance on the building housing PDD while training to maintain the network and telephone systems.

The Employee was promoted to Director of GIS, under the Director’s supervision.  Thereafter, the Employee was transferred to the position of Fiscal Officer, which is in a different department and under the supervision of another.  Later the Employee was transferred back to Director of GIS, again under the supervision of the Director.

The Employee married the Director’s child.  Neither Employee nor his spouse are indebted to the Director.  They are financially independent from the Director, and do not jointly own property with the Director, nor rent or lease any property from him.

Upon inquiry to the Mississippi Office of the Attorney General, said Office opined that this situation does not violate Mississippi Code Section 25-1-43, commonly known as the nepotism statute.  However, PDD is seeking an opinion from you verifying that the above depicted scenario does not violate Mississippi Code Section 25-4-101 et seq., or Section 109 of the Mississippi Constitution of 1890.

In the event you determine that the current employment situation does not comport with Mississippi law, please provide your opinion as to whether Employee’s transfer back to a different department, under the supervision of someone other than Employee’s father-in-law, would result in the rendering of the same opinion.

The Commission formally adopts Advisory Opinion No. 92-203-ER in response to this request and by attachment incorporates it into this opinion.

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

 
The Commission determined in the attached Advisory Opinion No. 92-203-ER that a planning and development district is a “public body” for purposes of the Ethics in Government laws.  Specifically, the Commission found that, “PDD’s are unique and are not clearly defined public entities.  However, the Commission found PDD’s are instruments of government and are thus part of government under [the cited above] Section 25-4-103(g)(v).”

Code Section 25-4-105(1), cited above, prohibits a public servant, including a planning and development district’s executive director, from using his official position to obtain a pecuniary benefit for himself, a relative or a business in which he is associated.

Code Section 25-4-103(q), cited above, defines relative as a spouse, child or parent. The requestor is advised that the Commission has consistently held that a benefit accruing to one spouse accrues equally to the other.  Therefore, any pecuniary benefit accruing to the alderman’s son-in-law also accrues to the alderman’s daughter.

It is the Commission’s understanding and belief that a supervisor/subordinate relationship exists between the executive director and the son-in-law based on the son-in-law’s position as Director of GIS reassigned on May 1, 2002, “under the supervision of the Director.”  As the son-in-law’s supervisor and the planning and development district’s executive director, the executive director may transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline the son-in-law as a planning and development district employee.

If this employment is such a supervisor/subordinate relationship, then Code Section 25-4-105(1) will prohibit the executive director from taking any actions, as set forth above, that would result in the son-in-law retaining and/or receiving a pecuniary benefit.

Actions by the executive director that would result in a pecuniary benefit for the son-in-law, and thus, be a violation of Code Section 25-4-105(1), would include, but not be limited to, actions that allowed the son-in-law to remain employed, be re-employed, receive a raise, receive additional benefits, receive a promotion and/or receive other forms of compensation or income.

The only way the executive director can be certain to avoid violating Code Section 25-4-105(1) is to totally and completely recuse himself from the subject matter providing the pecuniary interests; in this case, directly supervising the son-in-law’s employment. Specifically, he must not, in any way, be involved in the decision to employ or supervise his son-in-law. In addition, the executive director may not be involved in any decisions concerning pay raises or the increasing of other benefits that would benefit the son-in-law’s employment.

 
A total and complete recusal requires that the public servant avoid debating, discussing or taking action on the subject matter. This would include avoiding discussions of the subject matter with board members, staff or any other person during, prior to, and after an 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. When the action is in an official meeting, the minutes of the governing entity’s board should state the public servant left the meeting by showing him or her absent for that matter.

Based on the executive director’s responsibility to the planning and development district, if the son-in-law directly reported to the executive director, the executive director would be unable to totally and completely recuse himself from supervising his son-in-law’s employment and continue to effectively operate the district.

Concerning the requestor’s inquiry that the son-in-law transfer “back to a different department, under the supervision of someone other than Employee’s father-in-law,” individual circumstances would determine the executive director’s ability to avoid violating Code Section 25-4-105(1).  As in all organizations, the executive director is ultimately responsible for all operations of the organization, i.e., the planning and development district. Therefore, the son-in-law’s reassignment to another position that would allow the executive director to totally and completely recuse himself from providing a pecuniary benefit to him and continue to effectively operate the planning and development district, would be solely dependent on the specific facts.

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.

The State’s public policy mandate set forth in Code Section 25-4-101 is a sufficient reason, in this Commission’s opinion, for a planning and development district to avoid employing the son-in-law of the executive director for the following reasons.

Clearly, the employment of a planning and development district’s executive director’s son-in-law has the potential to create suspicion among the public and reflect unfavorably upon the planning and development district as there will be a question of a division of loyalty on the part of the executive director. A public servant should never place himself or herself, or be placed by his or her governmental entity, in a situation where a private interest is competing or appears to be competing with his or her public interest.

 
In addition, the transfer of the son-in-law “back to a different department, under the supervision of someone other than Employee’s father-in-law” is a circumstance that has the potential to create suspicion among the public and reflect unfavorably upon the planning and development district. Clearly, in making such a transfer, the executive director is placing his private interest, the employment of his son-in-law, in a competing status with his public interest as the planning and development district’s executive director.

As stated by the requestor, the Office of the Attorney General is the proper authority to address the Nepotism Law, Code Section 25-1-53, as this is an area of state law outside the jurisdiction of the Commission.
 
 

Scott Rankin
Executive Director