This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on  October 1, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May a member of a Recreation Authority Board vote to hire his or her son or niece?

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 25-4-103(f)(i)(ii), (g)(i)(ii)(iii)(iv)(v), (h), (l), (p)(i)(ii)(iii) and (q) states, in pertinent part:
 

“(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;

(iii) All school districts;

(iv) All courts; 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, in pertinent part:
 

“(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.

I am requesting an opinion on the following matter.  The facts are stated below.

A. The County Recreation Authority consists of five members appointed by the County Board of Supervisors and the Mayor and City Council Members.

B. The Authority is responsible for the overall operations of the parks, its facilities and the hiring of all necessary personnel.  The Authority is also responsible for managing the budget as allocated by the aforementioned governing entities.

C. My question is this, is there an ethics violation for members of the Recreation Authority Board to approve the hiring of their relatives, specifically a son of one of the board members and the niece of another member?  The niece is the child of a board member’s sister.  If there is a violation, what are the statutory penalties for such violations and who has the authority to enforce these penalties?

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

Advisory opinions are prospective in nature and neither review nor condone past conduct. Furthermore, this opinion provides no immunity from liability for past conduct nor should it be construed to establish any defense for past conduct.

The Recreation Authority Board is clearly a governmental board and its members are public servants subject to the Ethics in Government Laws. Section 25-4-105(1), Miss. Code of 1972, quoted above, prohibits a member of the Recreation Authority Board from voting or otherwise using his or her position to hire a parent, spouse or child. These are the only relatives covered by the Ethics in Government Laws, as defined in Section 25-4-103(q), Miss. Code of 1972, quoted above. Thus, a member of the Recreation Authority Board is absolutely prohibited from voting to employ his or her son but is not prohibited by Code Section 25-4-105(1) from voting to employ his or her niece.
To avoid a violation of Code Section 25-4-105(1), a Recreation Authority Board member must fully and totally recuse himself or herself from any matter relating to the employment of his or her parent, spouse or child. A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during official meetings or deliberations, but also avoid discussing the subject matter with staff or any other person. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

An abstention is considered a vote with the majority and is not a recusal. Furthermore, the minutes of the meeting should state the recusing member left the room before the matter came before the public body and did not return until after the vote.

While a Board member may avoid a violation of Code Section 25-4-105(1) through a proper recusal, other provisions of the Ethics in Government Laws may also apply. Section 109, Miss. Const. of 1890, and Section 25-4-105(2), Miss. Code of 1972, both quoted above, also prohibit a member of the Recreation Authority Board from having an interest, direct or indirect, in any contract funded or otherwise authorized by the Recreation Authority Board during the member’s term or for a year thereafter. If a Board member has an interest in the income of an Authority employee, whether the employee is a relative or not, then the member would also have an indirect interest in that employee’s contract of employment, in violation of both sections.

There are a number of circumstances which would give a board member an interest in an employee’s contract of employment, whether the employee is a relative or not. Some examples are, the employee lives in the board member’s home, leases or rents property from the board member, is a debtor of the board member, lives on property owned by the board member or co-owns a business with the board member. These examples do not constitute a comprehensive list of circumstances which would give rise to a conflict but are provided merely for illustration.

If the Board member would have an interest in the employment contract of the prospective employee, then the proposed employment is absolutely prohibited. A recusal will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2) because the conflict will accrue even if the member in question does not participate. The only action required is action by the board.

There are a number of penalties, both statutory and equitable, for violations of these laws. Under Section 25-4-109, Miss. Code of 1972, a circuit court “may censure, remove, suspend, or order a reduction in pay or demotion of [a] nonelected public servant or impose a civil fine of not more than five thousand dollars ($5,000.00) or both.” Additionally, Sections 25-4-113 & 25-4-19, Miss. Code of 1972, provide that a public servant may be liable for any damages suffered by the government, any amounts gained by the public servant, and for other claims in equity which might be applicable in the particular circumstances of the case. Ethics violations may be enforced by the Mississippi Ethics Commission, the Attorney General or, a District Attorney.
 
The Nepotism Law, Code Section 25-1-53, is an area of state law outside the jurisdiction of the Commission.  The requestor is advised to contact the Office of the Attorney General concerning how the Nepotism Law may affect the issue of a niece of a board member of a city/county recreation authority being employed by the authority.
 
 

Scott Rankin
Executive Director