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 school district employ more than two relatives of the superintendent?

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), (f)(i)(ii), (g)(iii), (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.

(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.(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.

(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.
 

I assumed the office of the County School Superintendent.  My wife and married son were (and currently are) teaching at one of our county schools.

My married daughter and her husband (both Mississippi teachers employed in another district) are interested in working with the County Schools.

Please render me an opinion on the legality and ethics issues related to this.  We have eight schools in the County School District.  Our principals recommend their staff to the superintendent, who in turn submits it to the school board.

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 superintendent of education, from using his or her official position to obtain a pecuniary benefit for his or her relative. A relative is defined in Code Section 25-4-103(q), cited above, as a spouse, child or parent. Therefore, a superintendent of education is prohibited by Code Section 25-4-105(1) from recommending his or her relative for employment with the school district.

Code Section 37-9-17 requires the superintendent of education to recommend to the school board all instructional and non-instructional employees.  A teacher is, of course, an instructional employee.   However, Code Section 37-9-17 allows a school board to establish a policy, whereby, the board’s designee, in place of the superintendent of education, is authorized to recommend employment of instructional and non-instructional employees to the school board. This process is “restricted to no more than two (2) positions for each employment period for each school in the local school district.” Id.

Therefore, a superintendent of education’s relative can be employed as a teacher and be re-employed by a school board if the school board has established a policy to authorize the school board’s designee to recommend the superintendent’s relative as a teacher.

The above described hiring process notwithstanding, a superintendent of education must be certain not to use his or her official position, directly or indirectly, to assist his or her relative in being employed by or in retaining employment as an employee with the school district and in obtaining raises or other benefits.  In order to do this, a superintendent of education must totally and completely recuse himself or herself from the employment and compensation processes.

A total and complete recusal requires that a superintendent of education not only avoid debating, discussing or taking action on the employment of his or her relative 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 or herself, a superintendent of education must leave the room or area where such discussions, considerations and/or actions take place.  The minutes of the school board should state that the superintendent of education left the meeting by showing him or her absent for the action concerning the employment of his or her relative.

Therefore, the designee appointed by the school board 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.

This process must also 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.”  Public servants should conduct themselves in a manner which enhances the public trust in government and avoid actions which may tend to create public suspicion regarding the honesty and integrity of those in 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, and the employment of multiple relatives would greatly and justifiably magnify that suspicion.  To fully comply with the state’s public policy mandate, the superintendent and relative should avoid circumstances that have the potential of creating suspicion.  Therefore, this is another reason why a total and complete recusal on the part of the superintendent is necessary when a decision or action could in any way affect the relative’s employment or compensation status.

The Ethics Commission only has the authority to interpret the Ethics in Government laws listed at the beginning of this opinion. The Commission is not interpreting other laws cited in this opinion but is merely applying them to an interpretation of the ethics laws. Legal opinions on all other laws are issued by the Attorney General. Questions regarding the legality of using the designee process outlined in Section 37-9-17 to employ more than two persons should be addressed to the Attorney General.
 
 

Scott Rankin
Executive Director