This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 9, 2005, basing its approval solely on the facts and circumstances stated herein.
 

ISSUE 1: May a school principal’s spouse or children hold a teaching or staff position in the same school where the principal serves?

ISSUE 2: May a superintendent’s spouse or children be employed in a teaching or staff position in the same school district with the superintendent?

ISSUE 3: May the spouse or child of the Director of the Vocational Complex hold a teaching or staff position in the same vocational complex where the director serves in the same administrative capacity of a principal or chief administrator of the complex?

ISSUE 4: May an assistant principal’s spouse or children hold a teaching or staff position in the same school where the assistant principal serves?

ISSUE 5: May a school principal hire any members of his/her family and stay within the ethics laws?

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:

Code Section 25-4-103(g)(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:

(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) 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.”

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
 

I spoke with you on Friday, July 29 concerning an employment situation in our school district. The situation that we spoke about was an opening in our vocational center for a special populations coordinator. The vocational director’s spouse applied for the position, and the director wanted the spouse to have the position. As we discussed over the telephone, I felt that we would have an ethics problem, and from our conversation you clarified that under the present circumstances that an
ethics question would exist. The vocational director in our district services in the same administrative capacity as a principal. The director evaluates vocational teachers and staff, and recommends re-employment or non-renewals to the superintendent for school board approval each year. In order to clarify our legal responsibilities, I am requesting a written opinion from the Ethics Commission on the following situations:

1. Can a school principal’s spouse or children hold a teaching or staff position in the same school where the principal serves as the chief administrator of the school?

2. Can a superintendent’s spouse or children be employed in a teaching or staff position in the same school district with the superintendent?

3. Can the spouse or child of the Director of the Vocational Complex hold a teaching or staff position in the same vocational complex where the director serves in the same administrative capacity of a principal or chief administrator of the complex?

4. What would be the ruling concerning assistant principals relative to the situations above?

5. At what point in the family line of principals could a school principal hire a member of his/her family and stay within the ethics laws.

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

ISSUE 1: May a school principal’s spouse or children hold a teaching or staff position in the same school where the principal serves?

Section 25-4-105(1), Miss. Code of 1972, quoted above, prohibits any public servant from using his or her position to obtain pecuniary benefit for a spouse, child or parent. This prohibition applies to all public school officials and employees. Section 37-9-17, Miss. Code of 1972, mandates as follows:
 

On or before April 1 of each year, the principal of each school shall recommend to the superintendent of the local school district the licensed employees or noninstructional employees to be employed for the school involved except those licensed employees or noninstructional employees who have been previously employed and who have a contract valid for the ensuing scholastic year.

If a principal, acting pursuant to this statute, recommends his or her spouse, child or parent, then the principal will violate Section 25-4-105(1). However, Section 37-9-17 also authorizes the school board “to designate a personnel supervisor or another principal employed by the school district to recommend to the superintendent licensed employees or noninstructional employees.” This step-aside provision can prevent a principal from violating Section 25-4-105(1) but can only be used for two positions at each school.

A principal must not only avoid recommending a relative but must also fully recuse himself or herself from the entire hiring process. A total and complete recusal requires that the principal not only avoid debating, discussing or taking action on the matter during official meetings or deliberations, but also avoid discussing the 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. In summary, if the school board’s designee recommends a principal’s relative and the principal recuses himself or herself from the hiring process, then the principal does not violate Section 25-4-105(1) if his or her relative is hired.

ISSUE 2: May a superintendent’s spouse or children be employed in a teaching or staff position in the same school district with the superintendent?

The same provisions applied to a principal above apply equally to a superintendent. If the school board’s designee recommends a superintendent’s relative and the superintendent recuses himself or herself from the hiring process, then the superintendent does not violate Section 25-4-105(1) if his or her relative is hired.

ISSUE 3: May the spouse or child of the Director of the Vocational Complex hold a teaching or staff position in the same vocational complex where the director serves in the same administrative capacity of a principal or chief administrator of the complex?

Like all other public servants, the director of a vocational complex may not take any action in his or her position which would create a pecuniary benefit for his or her spouse, child or parent. Section 37-9-17 does not mention the position of vocational director and, consequently, neither imposes a duty on the vocational director to recommend nor a procedure to avoid that duty. Nevertheless, the common practice of many school districts is to treat the director of a vocational complex as a principal and expect the director to make recommendations for vocational staff. Whether or not a particular school district adheres to this practice, the prohibition still applies. Thus, the director of a vocational complex may not recommend his or her spouse, child or parent be hired by the school district. If some other person recommends the vocational director’s relative and the vocational director recuses himself or herself from the hiring process, then the vocational director does not violate Section 25-4-105(1) if his or her relative is hired.

ISSUE 4: May an assistant principal’s spouse or children hold a teaching or staff position in the same school where the assistant principal serves?

Likewise, the position of assistant principal is not mentioned in Section 37-9-17, but an assistant principal is, nevertheless, subject to the prohibitions of Section 25-4-105(1) and may not recommend his or her spouse, child or parent for employment.

ISSUE 5: May a school principal hire any members of his/her family and stay within the ethics laws?

The only relatives mentioned in the Ethics in Government Laws are spouses, children and parents. Section 25-4-103(q). Because a benefit to one spouse is a benefit to the other spouse, public servants may also be prohibited from using their position to benefit the spouse of a child or parent. For public servants who are not members of boards, commissions or the Legislature, hiring relatives not covered by the Ethics in Government Laws is not prohibited by the Ethics in Government Laws.

However, the hiring of a number of other relatives may be prohibited by Anti-Nepotism Laws such as Sections 25-1-53 and 37-9-21. The Ethics Commission only has the authority to interpret the Ethics in Government Laws listed at the beginning of this opinion. The Commission is not interpreting other laws cited in this opinion but is merely applying them to an interpretation of the ethics laws. Legal opinions on all other laws are issued by the Attorney General.
 

Scott Rankin
Executive Director