This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 16, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May a county supervisor’s child be employed by an airport commission when  certain airport commission members are appointed by the board of supervisors and when the board of supervisors is required to approve the airport commission’s budget annually?

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

 
“(a) ‘Authority’ means any component unit of a governmental entity.

(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:

(i) Counties;

(ii) Municipalities; and

(v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.

(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.
 

Please be advised that we represent the Board of Supervisors of the County.  In this capacity, a Supervisor has requested that we contact you concerning an issue which has arisen.

Several years ago, the County, acting by and through the Board of Supervisors in conjunction with the Mayor and Board of Aldermen of the Town, created a joint Airport Commission pursuant to Miss. Code.  Pursuant to the terms of the agreement, the County appoints four of the five Airport Commissioners and the Town appoints one.  Further, the County is responsible for funding the project.  The statutes require that the two constituent governing authorities (the County and the Town) approve the budget annually.

The Supervisor’s daughter has applied for a job with the County Airport Commission and has been selected but not yet employed.  Prior to her being employed, we have been requested to obtain an ethics opinion concerning whether this would be legal given the various ethics laws governing Supervisors.

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

The board of supervisors’ vote to approve the budget has as its effect the authorization of the airport commission’s contracts, including its employment contracts. Therefore, should a supervisor’s child be employed by the airport commission, the supervisor would violate Constitutional Section 109  and  Code Section  25-4-105(2),  if  the child is  not totally  financially independent from the supervisor or if the supervisor is otherwise directly or indirectly interested in the child’s employment contract.

Certainly, a child would be financially dependent on a supervisor should the child live in the supervisor’s household or be receiving other financial assistance from the supervisor.  Also, the facts are not sufficient to determine if the supervisor will have an interest, direct or indirect, in his or her child’s employment contract with the airport commission in violation of Constitutional Section 109 and Code Section 25-4-105(2).  However, the following are some examples that could result in the supervisor having an interest, direct or indirect, in his or her child’s employment contract: the child leased or rented property from the supervisor; was a debtor of the supervisor; lived on property owned by the supervisor or co-owned a business with the supervisor. The above examples should not be considered as a complete list of circumstances that could result in the supervisor, if elected, having an interest, direct or indirect, in his or her child’s employment contract with the airport commission.

The requestor is cautioned to advise the supervisor to recuse himself in order to avoid an appearance of impropriety under the above cited Code Section 25-4-101 in any matter affecting the employment of a child, when not prohibited by Constitutional Section 109 and Code Section 25-4-105(2) as stated above, and in particular to avoid a violation of the above cited Code Section 25-4-105(1) in the employment of a financially independent child.  Certainly, Code Section 25-4-105(1) and Code Section 25-4-101 will require the supervisor to recuse on the approval of the airport commission’s budget if his financially independent child is employed by the airport commission.

Also, a supervisor’s participation and vote in the selection of an airport commission member when the supervisor’s relative is an employee of the airport commission is clearly a circumstance that has the potential of creating suspicion among the public and reflecting unfavorably upon the county and the airport commission. Therefore, the supervisor is advised that he should totally and completely recuse himself from any consideration and vote concerning the appointment of an airport commission member to prevent a potential violation of Code Section 25-4-105(1) and fully comply with the public policy mandate set forth in Code Section 25-4-101.

An abstention is a vote with the majority of the governing entity’s board and therefore does not qualify as a recusal. A proper recusal occurs when the public servant totally removes himself from the pertinent matter by not officially or unofficially taking part or action regarding the subject matter and leaves the room or area where such discussions, considerations or actions take place.  The minutes of the governing authority board should state that the public servant left the meeting by showing him or her absent for that matter.

The requestor is also cautioned to advise the supervisor that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2) because neither removes the prohibited interest in a contract authorized by the board of supervisors.
 

Scott Rankin
Executive Director