This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 5, 2003, basing its approval solely on the facts and circumstances stated herein.
 

May a public school teacher simultaneously serve as a member of the board of supervisors when his employing school district is the county school district located within the county he will serve as a supervisor?

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:

Constitutional Section 109 states:
 

“No public officer or member of the legislature shall be interested, directly or indirectly, in any contract with the state, or any district, county, city, or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term.”

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

“(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:

(i) Counties; and

(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.”

Code Section 25-4-105(1) and (2) 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.

(2) No public servant shall be interested, directly or indirectly, during the term for which he shall have been chosen, or within one (1) year after the expiration of such term, in any contract with the state, or any district, county, city or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member.”

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
 

Presently, I am employed by the County School Board of Education as a teacher at  the High School.  This August, I was also elected Supervisor in the County.  Prior to the election, I wrote the Office of the Attorney General requesting information on whether, if elected, I could serve in both positions until the end of my contract in August, 2004.  I received a letter from the Attorney General referring to the a prior opinion.  My understanding, based on the information supplied by the Office of Attorney General, is that I will be able to hold both positions.

In the reply from the Office of Attorney General, it was suggested that I write to you and also ask your opinion regarding this matter.  Could you please supply me with your opinion regarding this matter?

The Commission formally adopts Advisory Opinion No. 03-018-E 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.
 

Since the Legislature’s passage of the Uniform School Law of 1986, there is no absolute prohibition to a teacher serving on the board of the levying authority of a school district as the levying authority for school purposes is now a mandatory action and not a discretionary one.  In Frazier v. State, 504 So. 2d at pg. 701 (1987), the Mississippi Supreme Court addressed this specific issue. The Court said, “We cannot envision penalizing a member of a public board for voting affirmatively on a matter in which a court decree or statute gave him no choice but to vote precisely as he did. In such instance, while his vote may be necessary to put into effect some official process, it is ministerial.  Nor can we envision § 109 penalizing any individual for being on a board faced with such matter. Any evil envisioned by the authors of § 109 would have to come from a board member voting on a matter in which he had discretion to vote yes or no.” [See Frazier, at pg. 701.] [Emphasis added to bold text]

Based on the above, it is not as such a violation of the conflict of interest laws for a school teacher to simultaneously serve as a county supervisor, even though the employing school district is the county school district located within the county he will serve. This finding is also based on the school district and the county being separate governmental entities as defined in the above cited Code Section 25-4-103(g)(i)(ii) and (h).

Notwithstanding the above, a school teacher choosing to serve as a county supervisor must remain keenly aware of the above cited Code Section 25-4-105(1) and Code Section 25-4-101.

Code Section 25-4-105(1) prohibits public servants 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.  An abstention is a vote with the majority of the governmental entity’s board and therefore does not qualify as a recusal.

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 meeting, but also avoid discussing the subject matter with other board members, staff or any other person prior to and after the 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.  The minutes of the governmental entity’s board should state the public servant left the meeting by showing him or her absent for that matter.
 

Therefore, the requestor is advised that as a school teacher the only way he can be certain to avoid violating Code Section 25-4-105(1) is to recuse himself from all matters coming before the county board of supervisors that concern his school district employer should he be elected as a county supervisor.

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.

Clearly, a school teacher’s direct or indirect involvement with matters concerning his employing school district that are before the county board of supervisors of which he is a member has the potential of creating suspicion among the public and reflecting unfavorably upon the school district and the county.  Therefore, this is another significant reason why the requestor as the school teacher should totally and completely recuse himself from any matter concerning his school district employer should he be elected to the county board of supervisors.

As set forth in the attached advisory opinion, a circumstance can exist that would cause a violation of Constitutional Section 109 and Code Section 25-4-105(2), both cited above, should a board member of one governmental entity be employed by a separate governmental entity.

Such a circumstance involves the existence of contracts between the two governmental entities in which the public servant would have an inherent interest and/or would receive a personal or pecuniary benefit.

Constitutional Section 109 and Code Section 25-4-105(2) would prohibit a county supervisor from directly or indirectly having an inherent interest and/or receiving a personal or pecuniary benefit from his county or his school district employer as a result of any contracts existing between the two governmental entities.

The requestor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2).  Even without a board member’s vote, the authorization by the member’s board, nonetheless, results in a contract in which the board member has a prohibited interest.
 
 

Scott Rankin
Executive Director