This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on June 3, 2005, basing its approval solely on the facts and circumstances stated herein.
 

May the financially independent son of an alderman be employed by a city if the alderman fully recuses himself from all matters affecting the son?

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(e), (f)(i)(ii), (g)(ii), (h), (l), (p)(i)(ii)(iii) and (q) states, in pertinent part:
 

(e) ‘Compensation’ means money or thing of value received, or to be received, from any person for services rendered.

(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:

(ii) Municipalities.

(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) state:

“(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 writing you in regard to our conversation we had on May 10. The question was my son ... is seeking a job with the city of ... as Park and Recreation Director. I have just been elected on May 3 election as Ward 2 Alderman. Will it be legal for my son to work with the city and me to serve on the board of Aldermen? We are not in any type of business together. We both make our own living. He is presently working at ... Industries in [another] County where he has been for 17 years. During times when his salary would be discussed or anytime it was necessary, I would excuse myself from the meeting at that time.

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). A common, private, financial interest shared by a public servant and another person, in this case a child, may give the public servant a prohibited interest in the child’s income. See Waller v. Moore ex rel. Quitman County School Dist., 604 So.2d 265, 266-67 (Miss. 1992). If the public servant and relative are indeed totally, financially independent, then no violation of Section 109 or Section 25-4-105(2) should arise. 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. It appears the requestor and his son are financially independent. Therefore, no violation of Section 109 or Section 25-4-105(2) should arise automatically if the board of aldermen employs the son.

However, the requestor must take certain measures to avoid violating Section 25-4-105(1), Miss. Code of 1972, also quoted above. That subsection will prohibit the requestor from taking any action in his position as alderman which would result in a monetary benefit to his son. The requestor must recuse himself from any matter coming before the board which would create a pecuniary benefit for his son. Examples of such matters include approval by the board of the son’s hiring, approval of pay or benefits increases for all city employees or any other action resulting in a financial benefit to the son individually or as part of a group of city employees.

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. If the requestor fully recuses himself from any matter affecting his son as described above, no violation of Section 25-4-105(1) should result.
 

Scott Rankin
Executive Director