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 7, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May a code-chartered municipality employ the mayor’s child as its city clerk?

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)(ii), (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:

(ii) Municipalities.

(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) 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.
 

The town is a very small rural community.   According to the 2000 census, its population is just over a hundred persons.  Early this year, the city clerk resigned when it was discovered that actions taken while performing her job duties were questionable.  This matter is under investigation.

In discussions held on the preferred qualifications of a new city clerk, the following was outlined: Reside within the city limits - if possible; High School graduate/GED equivalent; Bondable; Computer skills; Knowledge of state/local law; Willing to become certified city clerk; Good people skills; Self motivated; Become Notary; Letter writing skills; Typing skills.

One lady interested in the position possesses all of the above qualifications.  In addition, she has a background in auditing having worked in the Agency Division of the State Agency and currently serves as the business manager of another state agency.  She is the daughter of the current mayor but is not financially dependent on him in any way.  The current mayor’s term ends in 2005 and it is not known whether he will run for re-election.

We realize that there are conflict of interest laws related to reducing or eliminating public suspicion.  However, in a small community like ours, it is very difficult to find a person who has all of the preferred qualifications, is interested in the position and is not related to someone who holds an elected office in the town.  Because of the problems with the most recent city clerk, we are very interested in this candidate because of her financial/accounting background.

We, the Alderpersons of the town, would like your approval to hire this candidate as the city clerk.  When any matters concerning the clerk’s discharging of her duties, including the salary, etc. are discussed the current mayor would not be involved in any way.  The mayor pro tem would preside over such matters and the mayor would step out until the discussion was completed.  Design of a strengthened system of checks and balances is already underway.

The Commission formally adopts Advisory Opinion No. 01-073-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.

There are several provisions of the state conflict of interest laws that are applicable to the circumstance presented herein by the requestors.  Each of these provisions of the state conflict of interest laws are addressed below.

The first provisions to be discussed are Constitutional Section 109 and Code Section 25-4-105(2), both cited above.

 Constitutional Section 109 and Code Section 25-4-105(2) prohibit a  public officer, such as a mayor or alderman, from being interested, directly or indirectly, in any contract with the 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.

The requestors are advised that this Commission has consistently held that mayors of code- chartered municipalities are board members for purposes of the conflict of interest laws.  They are considered working members of their boards of aldermen with discretion and superintending powers and duties affecting their municipalities.  Specifically, they have the duty to preside at all meetings of their boards, the power to veto actions of their boards and to give deciding votes.¹

Also, the Mississippi Supreme Court in Waller v. Moore, 604 So. 2d 265 (1992), said it is the interest in a contract of a public officer serving on a governmental board and not his vote or action that is prohibited by Constitutional Section 109 and Code Section 25-4-105(2).  In other words,  a recusal, an abstention nor a no vote will prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2). Even without a mayor’s involvement, the authorization by the mayor’s board nonetheless results in a contract in which the mayor has a prohibited interest.

Therefore, even though in a code-chartered municipality it is the board of aldermen that is the appointing authority with the responsibility of hiring and firing subject to the mayor's veto, the mayor is equally subject to the prohibitions of Constitutional Section 109 and Code Section 25-4-105(2) as are the aldermen if the mayor is determined to have an interest, direct or indirect, in a contract, including an employment contract,  authorized by the board of aldermen during the mayor’s term or within one year thereafter.²

It is this Commission’s opinion that an appointed city clerk does hold that position under an implied employment contract. The Commission’s opinion is based on the following findings.

First, Code Section 21-3-3 authorizes the municipal governing authorities to make the office of municipal clerk appointive and provides that the clerk serves at the will and pleasure of said governing authorities.  Therefore, even though it is accepted in this State that the city clerk is appointed for the same four (4) year term as the appointing authorities are elected to serve, the city clerk is subject to dismissal at anytime during the four (4) year term of the appointing authorities.

Secondly, the city clerk’s salary is set by the municipal governing authority.

Thirdly, even though the authority given the mayor and board of aldermen by Code Section 21-3-5 to prescribe duties does not apply to the statutory offices provided for in Section 21-3-3 which includes the municipal clerk, Code Section 21-3-15 clearly does direct that the mayor shall have the superintending control of all officers which would include the city clerk’s office.

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) would prohibit the town board from employing the new mayor’s child as city clerk if the mayor will have an interest, direct or indirect, in the child’s employment contract with the town.  In order for the mayor to avoid a violation of Constitutional Section 109 and Code Section 25-4-105(2), the mayor must be totally and completely financially independent from his child and have no interest, direct or indirect, in the child’s employment contract with the town.

The Commission notes that the requestor states that “she is the daughter of the current mayor but is not financially dependent on him in any way. Notwithstanding the above, the requestor is advised that the child would be financially dependent on the mayor should she live in his household or be receiving other financial assistance from him.

Also, the facts submitted by the requestors are not sufficient to determine whether the mayor would have an interest, direct or indirect, in his child’s employment contract with the town in violation of Constitutional Section 109 and Code Section 25-4-105(2).  Therefore, the following are some examples that could result in the mayor having an interest, direct or indirect, in his child’s employment contract with the town. The child leased or rented property from the mayor; was a debtor of the mayor; lived on property owned by the mayor; or, co-owned a business with the mayor.

 The above examples are provided for clarification purposes and should not be considered as a complete list of circumstances that could result in the mayor having an interest, direct or indirect, in the child’s employment contract with the town.

Should it be determined in this instance that the mayor will not have an interest, direct or indirect, in his child’s employment by the town board as city clerk, there are two other provisions of the conflict of interest laws that provide other formidable conflict of interest barriers to the mayor’s child’s employment as city clerk.

These two provisions of the conflict of interest laws are the above cited Code Section 25-4-105(1) and the above cited Code Section 25-4-101.

Code Section 25-4-105(1), cited above, prohibits a mayor of a code-chartered municipality from using his position to obtain a pecuniary benefit for his child.

Therefore, the new mayor may not in any way be involved in the town board’s decision to employ his child as city clerk.  In addition, the mayor may not be involved in any decisions of the town board concerning compensation or employee benefits that would provide a pecuniary benefit to his child as city clerk.

The only way the mayor can avoid using his official position to obtain a pecuniary benefit for his child is to totally and completely recuse himself from all subject matters that would provide a pecuniary benefit to the city clerk such as raises or expanded employee benefits.

A total and complete recusal requires a 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 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, a public servant must leave the room or area where such discussions, considerations and/or actions take place. 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.

Notwithstanding the fact that the mayor may avoid violating Code Section 25-4-105(1) by a recusal at the appropriate times should the town board employ his child as city clerk, it is also a fact that in recusing himself the mayor will be failing to properly carry-out his statutorily mandated duty set forth in Code Section 21-3-15 to exercise superintending control of all officers and affairs of the town.

Next, the issue presented by the requestors 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.

A mayor and a city clerk of a code-chartered municipality being parent and child raises serious public policy concerns as it is clearly a circumstance that will create suspicion among the public and reflect unfavorably upon the municipality.

Specifically, a mayor and city clerk of a code-chartered municipality being parent and child greatly weakens the built in checks and balances provided for in state law.

The following are some examples of the weakening of these checks and balances.

As already referenced, Code Section 21-3-15 places with the mayor the duty to exercise superintending control of all officers and affairs of the municipality. When one of the officers over which the mayor is to exercise superintending control is his child, the question is will the mayor’s personal desire to protect his child override his public duty to protect the municipality.

In a like manner, Code Section 21-14-21 places with the city clerk the responsibility to serve as the municipality’s auditor.  When the city clerk must audit financial matters directly related to the mayor who is the parent of the city clerk, the question is will the city clerk place personal concerns for the parent over the public responsibility to report financial irregularities to the board and other proper authorities concerning the mayor.

Also, Code Section 21-15-33 requires that the city clerk certify the minutes after the same have been signed by the mayor.

Equally important, if not more so, is the requirement of Code Section 21-39-13 that the mayor sign the municipality’s warrants or checks which are then to be attested by the city clerk.

Certainly, both Code Sections 21-15-33 and 21-39-13 are intended to provide a checks and balances mechanism where the important function of properly recorded minutes and properly issued warrants are concerned.  Certainly, bad public policy is the result of family members, such as a parent and child, performing the public duties related to such checks and balances.

The above examples are just some of the more obvious public policy and public trust problems that arise when the mayor and city clerk are parent and child.  Certainly, many others exist and can be expected to arise.

Based on the above, it is this Commission’s opinion that a mayor and a city clerk of a code- chartered municipality being parent and child is contrary to the public policy mandate set forth in Code Section 25-4-101.

Therefore, in order to fully and completely comply with the public policy mandate set forth in Code Section 25-4-101, the town board should not employ as the city clerk the child of the new mayor.
 

Scott Rankin
Executive Director
 

¹ Section 21-3-15, 1972 Mississippi Code Annotated. Duties of the mayor.

² Sections 21-3-3, 5 and 15, 1972 Mississippi Code Annotated.