ADVISORY OPINION NO. 07-073-E

July 6, 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 109, Miss. Const. of 1890.

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.

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

(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.

(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.

(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.

II. FACTS

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

This office represents the County Board of Supervisors. Pursuant to Title 41, the County operates a community hospital to which it appoints a Board of Trustees consisting of seven citizens of the County.

One of the present sitting members of the Board of Trustees is the mother of one of our supervisors and she has served on the Board of Trustees for a number of years, even before her son became a member of the Board of Supervisors.

The Board of Supervisors is currently considering the re-appointment of the trustee to another term and a member of our Board has requested that we ask an opinion of your office as to the appropriateness of such an appointment under the constitution and ethics laws of the State of Mississippi.

Please be further advised that there is no financial relationship of any kind between the supervisor and his mother, the trustee, and that he recuses himself from any vote or discussion as to her re-appointment.

III. ANALYSIS

Section 25-4-105(1), Miss. Code of 1972, prohibits a county supervisor from taking any action in his position to obtain a monetary benefit for his spouse, child or parent. Community hospital trustees are authorized to receive compensation for their service on the hospital board, pursuant to Section 41-13-29, Miss. Code of 1972. Thus, appointment to the community hospital board of trustees results in a monetary benefit to the appointee, albeit a nominal benefit. Therefore, a county supervisor must recuse himself from the appointment of his mother to the hospital board in compliance with Section 25-4-105(1).

To completely recuse himself the supervisor must leave the meeting room before the matter comes up for discussion and remain absent until the vote is concluded. The supervisor must not only avoid debating, discussing or taking action on the subject matter during official meetings or deliberations but must also avoid discussing the subject matter with anyone. 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, any minutes or other record of the meeting or other proceeding should state the recusing supervisor left the room before the matter came before the board and did not return until after the vote.

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 any direct or indirect interest in a contract with the government 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). When the child and parent are financially independent, the child has no financial interest in the parent’s compensation and no violation results.

Moreover, with regard to a “public office,” there is no contract. Johnston v. Reeves & Co., 72 So. 925, 927 (Miss. 1916). A position is a “public office” when created by law with duties cast upon the incumbent involving the exercise of some portion of the sovereign power of the government in the performance of which the public is concerned and which are continuing, or enduring and permanent, in their nature. State v. McLaurin, 131 So. 89 (Miss. 1930). By contrast “public employment” is a position lacking one or more of the foregoing elements. Id. A position on the community hospital board of trustees is a public office and does not involve a contract.

MISSISSIPPI ETHICS COMMISSION

BY: Tom Hood, Executive Director and
Chief Counsel