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 board of supervisors contract with a telephone service company which is represented by a supervisor’s son and employs that same supervisor’s son-in-law?

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(c), (d), (f)(i)(ii), (g)(i), (h), (l), (p)(i) and (q) states:
 

“(c) ‘Business’ means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company,  self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a  nonprofit corporation or other such entity, association or organization receiving public funds.

(d) ‘Business with which he is associated’ means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.

(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.

(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.

(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.
 

On behalf of a County Supervisor, I am requesting a ruling from the Mississippi Ethics Commission on the following matter:
The Supervisor’s son represents a telephone services company.  The Supervisor’s son-in-law is employed by this same company.  The Supervisor has no financial interest in this company and receives no income from the company.

Please advise if the County can enter into a contract with the telephone service company for telephone services.

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 supervisor from using his official position to obtain a pecuniary benefit for a relative or a business with which he is associated.

Code Section 25-4-103(q), cited above, defines relative as a spouse, child or parent. The son is a relative for purposes of the conflict of interest laws. Furthermore, the Commission has consistently held that a benefit accruing to one spouse accrues equally to the other. Therefore, any pecuniary benefit accruing to a supervisor’s son-in-law also accrues to the supervisor’s daughter who is also a relative. In addition, as set forth in the above cited Code Section 25-4-103(d), the telephone service company is a business with which the supervisor is associated since his son is its representative.

Based on the facts provided, the Commission must conclude the son and son-in-law are likely to receive some pecuniary benefit as a result of a contract between the county and the telephone service company. Clearly, the company will receive a pecuniary benefit. Since Code Section 25-4-105(1) prohibits the supervisor from using his position to obtain a pecuniary benefit for his son, daughter and/or the telephone service company, the supervisor must not be involved in any way in the county’s decisions, discussions or actions pertaining to its contract for telephone service. Using one’s official position can include any number of actions, many of which are routine. For a member of a board, such as a supervisor, voting constitutes one common use of position. Thus, this supervisor must recuse himself from any matter relating to the contract.

An abstention is a vote with the majority of the governing entity’s board and therefore does not qualify as a recusal. 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.

Notwithstanding the above, the requestor is cautioned to advise the supervisor that a recusal or an abstention will not prevent a violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2). Even without a board member’s vote, the authorization by the member’s board, nonetheless, results in a contract in which the board member has a prohibited interest.

Constitutional Section 109 and Code Section 25-4-105(2) prohibit a supervisor from having an interest, direct or indirect, in a contract authorized by the board of supervisors of which he is a member during his term and for one year thereafter.

Therefore, Constitutional Section 109 and Code Section 25-4-105(2) would prohibit the county from contracting with the telephone service company with which his son and son-in-law are associated if the supervisor is directly or indirectly interested in the contract. The supervisor and his children must be totally and completely financially independent from each other for the supervisor not to have a prohibited interest in the contract. In short, the supervisor not having a direct financial interest in the company, such as an income, is not in and of itself sufficient to avoid a violation of Constitutional Section 109 and Code Section 25-4-105(2).

Certainly, the son or son-in-law would be financially dependent on the supervisor should they or their families live in his household or receive financial assistance from him. In addition, the following are other examples that could result in the supervisor having a direct or indirect interest in the telephones service company’s contract with the county. The son or son-in-law, or their families, leased or rented property from the supervisor; was a debtor of the supervisor; lived on or occupied property owned by the supervisor; or co-owned other business interests with the supervisor. The above examples should not be considered as a complete list of circumstances that could result in the supervisor having a direct or indirect interest in the contract in question.

The issue presented by the requestor also must be viewed as it relates to Code Section 25-4-101. 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, the county authorizing a contract with the telephone service company associated with the son and son-in-law of the supervisor can be expected to create suspicion among the public and reflect unfavorably upon the county.

Therefore, this potential for public suspicion and unfavorable public perception should be enough of a concern for the board of supervisors to not contract with the telephone service company associated with the supervisor’s son and son-in-law.
 
 

Scott Rankin
Executive Director