ADVISORY OPINION NO. 07-005-E

February 2, 2007

The Mississippi Ethics Commission issued this opinion on the date shown above in accordance with Section 25-4-17(i), Mississippi Code of 1972, as reflected upon its minutes of even date. The Commission is empowered to interpret and opine only upon Article IV, Section 109, Mississippi Constitution of 1890, and Article 3, Chapter 4, Title 25, Mississippi Code of 1972. This opinion does not interpret or offer indemnity from liability for any other laws, rules or regulations. The Commission based this opinion solely on the facts and circumstances provided by the requestor as restated herein. The indemnity provided under Section 25-4-17(i) is limited to the individual who requested this opinion and to the accuracy and completeness of these facts.

I. LAW

The pertinent Ethics in Government Laws to be considered here are as follows, to wit:

Section 25-4-103, Miss. Code of 1972.

(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.

Section 25-4-105, Miss. Code of 1972.

(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.

II. FACTS

Facts provided by the requestor are set forth below, with identifying information redacted, and are considered a part of this opinion.

My wife is presently employed as the secretary for the Food Service Administrator in the School District where I am the Superintendent of Education. She was already working for the School District in 2003 when I became Superintendent. Her position she is a noncertified position, she is not under contract.

Before applying for the Superintendent’s position I asked and received an opinion from the Mississippi Ethics Commission. I have enclosed a copy of the opinion.

If a position she is qualified to fill comes open, can she be hired for that position with me as the Superintendent?

III. ANALYSIS

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 including superintendents. If a superintendent, acting pursuant to this statute, recommends his or her spouse, child or parent, then the superintendent will violate Section 25-4-105(1).

Section 37-9-17, Miss. Code of 1972, read in pertinent part as follows:

The school board of any local school district shall be authorized to designate a personnel supervisor or another principal employed by the school district to accept the recommendations of principals or their designees for licensed employees or noninstructional employees and to transmit approved recommendations to the local school board; however, this authorization shall be restricted to no more than two (2) positions for each employment period for each school in the local school district. Any noninstructional employee employed upon the recommendation of a personnel supervisor or another principal employed by the local school district must have been employed by the local school district at the time the superintendent was elected or appointed to office; a noninstructional employee employed under this authorization may not be paid compensation in excess of the statewide average compensation for such noninstructional position with comparable experience, as established by the State Department of Education.

However, the Office of the Attorney General has opined that this statute is not applicable to employees of the district office. Op. Atty. Gen. No. 2002-0137. 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 Office of the Attorney General.

If the school board’s designee recommends a superintendent’s spouse 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 spouse is hired. 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. Furthermore, the minutes of the meeting should state the recusing public servant left the room before the matter came before the public body and did not return until after the vote.

MISSISSIPPI ETHICS COMMISSION

BY: Tom Hood, Executive Director and
Chief Counsel