This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on January 14, 2005, basing its approval solely on the facts and circumstances stated herein.
 

May the spouse of a member of the board of trustees of a municipal separate school district serve on the city council which appoints members of the school board?

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)(ii)(iii), (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:

(ii) Municipalities; and

(iii) All school districts.

(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.
 

I am requesting an advisory opinion addressing the relationship between an elected candidate for City Council with the spouse presently serving as an appointed member of the Municipal School District [board]. The city council does not have budgetary control over the school district.

The requestor spoke by telephone with a member of the Commission’s staff before submitting this opinion request. In that conversation, the requestor reported that he or she intends to become a candidate for city council and that his or her spouse presently serves on the board of trustees for the municipal separate school district in the same municipality.

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

Service by one spouse on the city council while the other spouse serves on the board of trustees for the municipal separate school district is not prohibited by the Ethics in Government Laws. Both positions are public offices, meaning neither position is held by contract. See State v. McLaurin, 131 So. 89 (Miss. 1930) and Johnston v. Reeves & Co., 72 So. 925, 927 (Miss. 1916). Thus, neither Section 109, Miss. Const. of 1890, nor Section 25-4-105(2), Miss. Code of 1972, apply to either position.

However, Section 25-4-105(1), Miss. Code of 1972, quoted above, will prohibit a city council member from participating in the appointment of his or her spouse to the school board. By law, school board members are to be compensated for their service. See Section 37-6-13, Miss. Code of 1972. Therefore, appointment to a school board should result in a pecuniary benefit to the appointee, although it may only be a nominal benefit. If the council member votes or otherwise participates in the appointment of his or her spouse to the school board, he or she would be using his or her official position as council member to obtain a pecuniary benefit for his or her spouse in violation of Code Section 25-4-105(1).

To avoid such a violation the council member must recuse himself or herself from any action by the council to appoint or reappoint his or her spouse to the school board. 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.
 

Scott Rankin
Executive Director