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 county school board member be employed by the county in an educational program?

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)(iii), (h), (l), (p)(i)(ii)(iii) 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.

(g) ‘Government’ means the state and all political entities thereof, both collectively and separately, including but not limited to:

(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 currently pursuing my elementary education degree from a state university. My spouse is an employee of a County and was recently elected to the County School Board District. It is my understanding that a current Mississippi statute makes it unlawful for a spouse to be employed with the same school district on which the other spouse serves as a school board
member.

Nearly a year ago, a principal of an Elementary School selected me to participate in the County Title V Community Prevention Program. This program is designed to assist elementary school students improve on fundamental phonics and reading skills. The students receive tutorial in reading. With the exception that the program is run on the campus of the Elementary School, this program is completely and wholly independent of the County School District. Funds for resources and supplies are provided via the County Board of Supervisors and not the County School District. My salary comes from the County Board of Supervisors and not the County School District.

It is the hope of my spouse and I to continue to assist in the educational growth and development of the youth of the County. This is my reasoning for starting the Title V Community Prevention Program, and it is my desire to continue. We fundamentally believe in the value of an education, and to such an end, are committed to helping young people acquire it as a means of achieving their goals. My spouse’s decision to seek election as a school board member was made because of his desire to assist in the education growth of our children in the County. It is my hope that your interpretation of the statute will allow me to continue to work with the Title V program.

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

This opinion is written with the understanding that the requestor is officially listed by the county board of supervisors as their employee. If this understanding is incorrect, this opinion is no longer applicable and the requestor is advised to immediately contact the Commission’s staff.

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. See Frazier v. State, 504 So. 2d 675, 693 (Miss. 1987), citing Cassibry v. State, 404 So. 2d 1360, 1366-67 (Miss. 1981).

So long as the county school board takes no action to authorize the requestor’s contract of employment with the county board of supervisors, no violation of Constitutional Section 109 or Code Section 25-4-105(2) will result. However, such a prohibited action would include an agreement between the county school board and the county board of supervisors to allow the County Title V Community
Prevention Program to be run on the campus of the Elementary School. Such an authorization is normally likely where, as here, two separate governmental entities are involved in a joint program. Any such action by the school board will absolutely result in a violation of Constitutional Section 109 and Code Section 25-4-105(2) for the school board member.

Notwithstanding the above, the requestor’s spouse is also advised against voting or participating in any decision by the school district and/or school board regarding the County Title V Community Prevention Program being run on the campus of the Elementary School. This advice is appropriate due to the prohibition imposed in Code Section 25-4-105(1).

Code Section 25-4-105(1) prohibits a school board member from using his or her official position to obtain a pecuniary benefit for his or her relative As set forth in Code Section 25-4-103(q), cited above, a spouse is a relative for purposes of the state conflict of interest laws.

Therefore, the county school board member may not, in any way, be involved in the county school board’s decisions, discussions or actions pertaining to the County Title V Community Prevention Program in question. The proper way for the school board member to avoid a conflict is to totally and completely recuse himself.

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 a public servant not only avoid debating, discussing or taking action on the subject matter during the official meeting, but also avoid discussing the subject matter with board members, staff or any other person prior to and after the official meeting. This
includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

Also to properly recuse oneself from a matter, a public servant must leave the room or area where such discussions, considerations and/or actions take place. The minutes of the governing entity’s board should state the public servant left the meeting by showing him or her absent for that matter.

The requestor is cautioned to advise the spouse/school board member that a recusal by a school board member will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2).
 

Scott Rankin
Executive Director