This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 22, 2005, basing its approval solely on the facts and circumstances stated herein.
 

May the financially independent adult son of a county supervisor be employed by the county as a garbage truck jumper in the county solid waste department?

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)(i)(v), (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:

(i) Counties; 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 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.
 

As counsel for the Board of Supervisors, this is a request for an official opinion from the Mississippi Ethics Commission with respect to the following question:  May the financially independent adult son of a County supervisor be employed by the County Solid Waste Department as a garbage truck “jumper”?

I am confident that the aforementioned proposed employment would not constitute a violation of the Nepotism Statute, Section 25-1-53, in that it does not involve one of the specified prohibited positions.  However, I am uncertain if the proposed employment would violate the Ethics in Government Statutes, Section 25-4-101, et seq.

By way of further information, the proposed employee is the adult son of a County Supervisor.  The proposed employee is financially independent of and does not reside with the supervisor.  He wishes to work as a member of the crew on the garbage trucks owned and operated by the County Solid Waste Department.  The Board of Supervisors makes no levy of taxes to fund the Solid Waste Department is the collection of a fee by the Department of $6.00 per month from each residential generator of household solid waste.

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 County Solid Waste Department and its fee and collection system are established by the County Board of Supervisors with the approval to expend the fees and collections arising from the County Board of Supervisors’ budget process as authorized in Sections17-17-5, 19-5-17, 18 and 21, Miss. Code of 1972.

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, including a county supervisor, 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 from the requestor’s facts that the supervisor 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 supervisors employs the son as a garbage truck jumper.

However, the requestor is cautioned to advise the supervisor that he must take certain measures to avoid violating Section 25-4-105(1), Miss. Code of 1972, also quoted above. That subsection will prohibit the supervisor from taking any action in his official position as a member of the county board of supervisors which would result in a monetary benefit to his son. The supervisor 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 county employees or any other action resulting in a financial benefit to the son individually or as part of a group of county 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