This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 6, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May a superintendent of education’s child be recommended by the superintendent to the county school board of trustees for employment as an instructional/certified employee of the county school district?

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(f)(i)(ii), (g)(iii), (h), (l), (p)(i)(ii)(iii) and (q) 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) ‘Government’ 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.
 

Being a new superintendent, I would like an opinion rendered on the following:

Could I hire with the Board’s recommendation a child of mine who is licensed by the State of Mississippi to fill a position within my school district?  Her residence is not with me.  She is not financially dependent upon me.

The Commission formally adopts Advisory Opinion No. 93-167-E in response to this request and by attachment incorporate it into this opinion.

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

As set forth in the attached Advisory Opinion No. 93-167-E, a superintendent of education is absolutely prohibited by Code Section 25-4-105(1), cited above, from recommending his spouse for employment with the school district. The same prohibition holds true for a child as Code Section 25-4-105(1) prohibits a public servant, such as a superintendent of education, from using his official position to obtain a pecuniary benefit for a “relative.” As set forth in Code Section 25-4-103(q), cited above, relative is defined as “spouse, child or parent.”

Code Section 37-9-17 states that the superintendent of education is to recommend to the  board of trustees all instructional/certificated employees and noninstructional employees before the board of trustees can contract to employee or re-employee. Therefore, the superintendent uses his official position in the employment process of school district employees.

Notwithstanding the above, the requestor is advised that Code Section 37-9-17 does provide for a limited procedure where the superintendent of education can be removed from involvement in the employment process. Specifically, Code Section 37-9-17 allows a school board of trustees to establish a policy where the board’s designee, in place of the superintendent of education, is authorized to recommend employment of instructional/certificated employees to the board of trustees for no more than two (2) positions for each employment period.

Therefore, a superintendent of education’s relative, i.e., a spouse, child or parent, can be employed as an instructional/certificated employee by a school board of trustees if the board has established a policy to authorize the school board’s designee to recommend no more than two (2) positions and the superintendent’s relative’s position is one of the two (2) positions.

Notwithstanding the above, a superintendent of education must be certain not to use his official position, directly or indirectly, to assist his relative in being employed by or in retaining his or her employment with the school district.  In order to do this, a superintendent of education must totally and completely recuse himself from the employment process.

A total and complete recusal requires that a superintendent of education not only avoid debating, discussing or taking action on his relative’s employment during the official meeting, but also avoid discussing the subject matter with the school board members, board designee, other 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 in order to properly recuse himself, a superintendent of education must leave the room or area where such discussions, considerations and/or actions take place.  The minutes of the board of trustees should state that the superintendent of education left the meeting by showing him absent for the action concerning his relative’s employment.

Also, the designee appointed by the board of trustees must remain in place for all actions concerning the superintendent’s relative receiving raises, promotions, benefits or any other decisions providing a pecuniary benefit, as well as, for the re-employment status set forth in Code Section 37-9-17.

As to whether the requestor has already violated Code Section 25-4-105(1) by lobbying or attempting to otherwise influence the board of trustees to employ his child is a question of fact and therefore cannot be addressed in this opinion. An opinion cannot operate retrospectively to ratify or invalidate any past actions by a public officer or entity. This office does not offer opinions on past actions. Therefore, this opinion is for prospective purposes only.  As such, this opinion will not provide any protection from civil or criminal liability to any public servant of the school district should he or she have already acted in any way that would violate the Ethics in Government Law.

The issue presented by the requestor regarding a superintendent of education’s relative being employed by the school district 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 district’s employment of its superintendent of education’s relative has the potential of creating suspicion among the public and reflecting unfavorably upon the school district. Therefore, a school board of trustees should avoid the employment of its superintendent’s relatives whenever possible.
 

Scott Rankin
Executive Director