This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on June 13, 2003, basing its approval solely on the facts and circumstances stated herein.
 

May a principal request the deputy superintendent’s spouse be promoted to the position of lead teacher when the deputy superintendent recommended the principal be appointed to his position shortly before the principal’s request to promote the deputy superintendent’s spouse?

Your opinion request to the Office of the Attorney General dated May 21, 2003, was referred by that Office to the Mississippi Ethics Commission on May 27, 2003, as your request involves the above issue that concern the Mississippi conflict of interest laws.

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

“(b) ‘Benefit’ means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.

(g) ‘Governmental’ means the state and all political entities thereof, both collectively and separately, including but not limited to:

(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.

(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.
 

On behalf of the County School Board, I request an Attorney General Opinion.

The wife of the Deputy Superintendent of the County School District is a teacher in the school district.  Approximately six weeks ago, the Deputy Superintendent recommended an Assistant Principal for a Principal position.  This Assistant Principal will be a Principal next year.  Approximately one week ago, the Assistant Principal who was recommended for a Principal position by the Deputy Superintendent requested that the Deputy Superintendent’s wife be promoted to the position of lead teacher.

The Deputy Superintendent had no part in the recommendation of his wife to the position of lead teacher, but the recommendation came shortly after the Deputy Superintendent made his recommendation to promote the Assistant Principal to Principal.  The question for the Attorney General is whether any conflict exists that would prohibit the person recommended by the Deputy Superintendent from recommending the Deputy Superintendent’s wife for a promotion.  Again, the Deputy Superintendent did not make any recommendation as to his wife.  The recommendation was solely made by the person whom the Deputy Superintendent recommended for the Principal position.

Please advise whether this situation creates any conflict of interest as to promoting the Deputy Superintendent’s wife to the position of lead teacher.

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

Code Section 25-4-105(1), cited above, prohibits a public servant, including a deputy superintendent, from using his official position to obtain a pecuniary benefit for his relatives.

Code Section 25-4-103(q), cited above, defines relative as spouse, child or parent.

 
Code Section 25-4-103(l), cited above, defines pecuniary benefit as a benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain.

Therefore, Code Section 25-4-105(1) would absolutely prohibit the deputy superintendent’s spouse being promoted to the position of lead teacher at the request of the new principal if the deputy superintendent at the time of his recommendation to appoint the assistant principal as the new principal understood or expected that the new principal would appoint his spouse to the position of lead teacher. It is presumed that the position of lead teacher carries with it a raise and/or additional benefits that result in a pecuniary benefit.

The sole question then is whether the deputy superintendent used his official position to obtain a pecuniary benefit for his spouse when he appointed the new principal.  The pecuniary benefit being any raise and/or additional benefits associated with his spouse’s promotion to lead teacher.

To “use his official position,” a public servant must have some belief or expectation that his or her activities or inactivities would lead to the pecuniary benefit.  However, it is not required that his or her activities or inactivities constitute a misuse of his official position to violate Code Section 25-4-105(1).

The deputy superintendent’s appointment of the new principal is not enough, by itself, to result in a violation of Code Section 25-4-105(1), if  he had no understanding or expectation that the new principal would promote his spouse to the lead teacher position. The facts presented by the requestor are not sufficient to determine if the deputy superintendent had such an understanding or  expectation that the new principal would promote his spouse to the lead teacher position.

The circumstance presented by the requestor certainly raises the presumption that there is a very real possibility that the deputy superintendent appointed the new principal with the expectation that they had an understanding that his spouse would be promoted to the lead teacher position.  However, additional facts would be necessary to prove to a court of competent jurisdiction that a violation of Code Section 25-4-105(1) had occurred.

 
This very real possibility that the deputy superintendent and the new principal had such an understanding raises serious public policy and public trust concerns. Therefore, 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.

In order to fully comply with the public policy and public trust provisions set forth in Code Section 25-4-101 and thereby avoid creating suspicion among the public and any unfavorable reflection upon the school district, the deputy superintendent’s spouse should not be promoted to the lead teacher position as the new principal that has requested her promotion was himself recommended by the deputy superintendent just shortly before his request that she be promoted to lead teacher.

Appointing someone other than the deputy superintendent’s spouse to the lead teacher position, not only avoids the public policy/trust issue of the deputy superintendent being in a situation where his private interest is competing or appears to be competing with his public interests but it also allows him to avoid a future inquiry of whether he violated Code Section 25-4-105(1).
 
 

Scott Rankin
Executive Director