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 the daughter of a county supervisor be employed by the sheriff’s office?

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), (l) 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.

(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.

(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 County Board of Supervisors.  In connection with this, an issue has come up.  With regard to the issue, we would request an official ethics opinion.

One of the five elected County Supervisors’ daughters has applied for a job with the County.  We understand that the daughter is completely independent financially from her father.  The position is as a front desk receptionist at the County Sheriff’s Department.  The Sheriff of the County will be the individual making all employment decisions including whether to hire the Supervisor’s daughter.

Please advise whether the County can employ the daughter of an elected Supervisor given the above information.

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

Section 109, Miss. Const. of 1890, and its statutory parallel, Section 25-4-105(2), Miss. Code of 1972, both quoted above, prohibit a member of a public board from having an interest in a contract authorized by that board during his or her term or for one year thereafter. Frazier v. State, ex rel. Pittman, 504 So.2d 675, 693 (Miss. 1987). In this context “authorized” means more than just the obvious act of approving a contract. It also means appropriating money. An appropriation of public money which ultimately funds a contract is an action which authorizes that contract.  Id., citing Cassibry v. State, 404 So. 2d 1360, 1366-67 (Miss. 1981).

Thus, when the board of supervisors approves the budget for the sheriff’s department or appropriates funds pursuant to that budget, the board will be funding the daughter’s employment contract. If the supervisor and his daughter are not totally financially independent, then the supervisor will have an indirect interest in his daughter’s employment contract with the county and the income received therefrom. Examples of common financial interests precluding total financial independence include, but are not limited to the child leasing or renting property from the parent, owing money to the parent, living on property owned by the parent, sharing liquid assets with the parent or co-owning a business with the parent.

Even if the supervisor and daughter are in fact totally financially independent, the supervisor must still refrain from using his official position to obtain pecuniary benefit for his daughter, as proscribed in Section 25-4-105(1), Miss. Code of 1972, quoted above. To avoid using his position in violation of that statute, the supervisor must completely recuse himself from any matter affecting the compensation and benefits paid to his daughter by the county. This restriction includes not only matters directly and specifically affecting the supervisor’s daughter but also includes matters affecting her as a member of a class of people, such as all county employees. Such matters would not only include the approval of specific board orders setting salaries or raises but the approval of a budget including such salaries or raises.

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 members 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. However, a recusal will not prevent or ameliorate a violation of Constitutional Section 109 and Code Section 25-4-105(2), as those sections do not require any affirmative act by an individual member but merely action by the board.
 

Scott Rankin
Executive Director