This Advisory Opinion concerns the following issue 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.
 

May a husband and wife serve at the same time in the same county as county supervisor and circuit clerk, respectively?

Your opinion request to the Office of the Attorney General dated August 11, 2005, was referred by that Office to the Mississippi Ethics Commission on August 16, 2005, as your request involves the above issue that concern the Mississippi conflict of interest 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)(i), (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:

(i) Counties.

(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.
 

Is it lawful for a husband and wife to serve at the same time in the same county as elected officials, one as the county supervisor and the other as the circuit clerk?

If so, is it lawful for the county supervisor to vote on the budget of the circuit clerk?

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

Section 25-4-105(1), Miss. Code of 1972, quoted above, prohibits a public servant from using his or her official position to obtain pecuniary benefit for his or her spouse. Therefore, while a husband and wife may simultaneously serve as county supervisor and circuit clerk, the supervisor may not take any action in his official capacity which would result in a monetary benefit to his wife, the circuit clerk. To comply with this restriction, the supervisor would be obliged to recuse himself from any such matter, including but not limited to approving the budget for the office of circuit clerk and payment of any claims or disbursements which would financially benefit his wife.

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