This Advisory Opinion concerns the following issues 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.
 

ISSUE 1. May an individual who is a member of a five member School Board and who is employed by a five member Board of Supervisors in the same county cast a vote in favor of hiring a member of the Board of Supervisors as a coach and a teacher with the District?

ISSUE 2. May an individual who is a member of a five member School Board and who is employed by a five member Board of Supervisors in the same county cast a vote in favor of hiring a member of the Board of Supervisors as a coach and a teacher in the High School of the said District when the vote was two for hiring this individual and two for not hiring this Supervisor and the individual cast the deciding vote?

ISSUE 3. May an individual be recommended by the Superintendent of the School District to the school board for employment as a coach and a teacher when the individual is the Superintendent’s first cousin?

ISSUE 4. Does the fact that The Board of Supervisors provides ad valorem tax money to the School District prohibit the Board of Education member employed by the County Board of Supervisors from voting to employ a  member of the Board of Supervisors a coach and a teacher with the District?

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

(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

(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 I am requesting on Ethics Opinion on the following questions:

1. May an individual who is a member of a five member School Board and who is employed by a five member Board of Supervisors in the same county cast a vote in favor of hiring a member of the Board of Supervisors as a coach and a teacher in the High School of the said District and County?

2. Upon The Superintendent’s Recommendation for the hiring of this individual, the vote was two for hiring this individual and two for not hiring this individual.  All five of the members of the Board of Education were present and voting.  This individual who was an employee of the Supervisor’s District cast the deciding vote.  Should he have refrained from voting because the newly hired coach/teacher for the High School was a duly elected member of the Board of Supervisors who employed this School Board member who voted in his favor?

3. Moreover, this individual who was a member of The County Board of Supervisors of said county was a new hire who was recommended by the Superintendent of the School District to The School Board for Hiring.  The Superintendent is his first cousin.  Is there any prohibition of his first cousin being able to recommend him for the position?

4. Does the fact that The Board of Supervisors has to provide 5% Ad Valorem Tax money to The School District prohibit The Board of Education member employee of the County Board of Supervisors from being able to vote for a  member of the Board of Supervisors to be hired as an employee of The School District as a Coach and a teacher?

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

ISSUE 1. The state conflict of interest laws will not prohibit a member of a school board from voting to employee a coach/teacher who is a member of the county board of supervisors when the school board member is an employee of the county the supervisor serves, unless the school board member personally obtains a pecuniary benefit for casting a favorable vote to employ the supervisor.

Specifically, Code Section 25-4-105(1), cited above, prohibits both the supervisor and the school board member from using their official positions to obtain a pecuniary benefit for themselves.

Regarding Code Section 25-4-105(1), the sole question would be whether the school board member or the supervisor used their official positions by way of some type quid pro quo, such as the supervisor agreeing to give the school board member a raise or promotion in exchange for his vote to employ the supervisor as a coach/teacher.

To “use his official position,” a public servant must have some belief or expectation that his activity or inactivity would lead to the pecuniary benefit.  However, it is not required that his activity or inactivity constitute a misuse of his official position to violate Code Section 25-4-105(1).

The school board member’s vote to employ the supervisor as a coach/teacher is not enough, by itself, to result in a violation of Code Section 25-4-105(1).

ISSUE 2. See response to ISSUE 1.  The fact that the vote was 3 to 2 does not change the application of Code Section 25-4-105(1) to this circumstance.  In short, unless the school board member obtains a personal pecuniary benefit from his vote, it is not a violation.

ISSUE 3. Code Section 25-4-105(1) does prohibit a public servant, such as a superintendent of education, from using his official position to obtain a pecuniary benefit for a relative.  However, Code Section 25-4-103(q), cited above, defines “relative” as “spouse, child or parent.”  Since a cousin is not a relative for purposes of the conflict of interest laws, it is not a violation for a superintendent of education to recommend his cousin for employment with the school district.

ISSUE 4. See response to ISSUE 1.  The fact that the county board of supervisors is the levying authority for the school district does not change the application of Code Section 25-4-105(1) to this circumstance.  In short, unless the school board member obtained a personal pecuniary benefit from his vote, it is not a violation.

In addition, since the Legislature’s passage of the Uniform School Law of 1986, the levying authority of the Board of Supervisors for school purposes is now a mandatory action and not a discretionary one.  Thus, a county supervisor is not necessarily prohibited from being employed by the county school district. In Frazier v. State, 504 So. 2d at pg. 701 (1987), the Mississippi Supreme Court addressed this specific issue. The Court said, “We cannot envision penalizing a member of a public board for voting affirmatively on a matter in which a court decree or statute gave him no choice but to vote precisely as he did. In such instance, while his vote may be necessary to put into effect some official process, it is ministerial.  Nor can we envision § 109 penalizing any individual for being on a board faced with such matter. Any evil envisioned by the authors of § 109 would have to come from a board member voting on a matter in which he had discretion to vote yes or no.” [See Frazier, at pg. 701.] [Emphasis added to bold text]
 
 
 

Scott Rankin
Executive Director