ADVISORY OPINION NO. 95-091-E
 
 

August 25, 1995

    This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on August 25, 1995.

May a parent be an elected county school board member and a child be an elected superintendent of education and simultaneously serve the same county school district?

    The Mississippi Ethics Commission is restricted 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, Mississippi laws outside the jurisdiction of the Commission and internal rules and regulations of the local governmental entity are not addressed by this opinion.

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

I am a member of the County School Board, and my son is a candidate for the Office of Superintendent of Education of the County. Should he be elected, would it be a conflict of interest for me to remain on the Board?

The pertinent conflicts 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(g)(iii), (h), (1), (p)(i) and (q) states:

"(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(iii) Ml 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

(1) '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.

(q) 'Relative' means the spouse, child or parent."

Code Section 25-4-105(1) and (2) 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.

(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."

    Constitutional Section 109 and Code Section 25-4-105(2), cited above, prohibit a public officer from being interested in any contract authorized by the public officer's board during his or her term or for one (1) year thereafter.

    Therefore, a school board member would have a prohibited interest in his or her child's position with the board member's school district only if the child's position is held by contract.

    The Mississippi Supreme Court in Johnston v. Reeves & Co., 72 So. 925 (Miss. 1916), found that a position which is a public office is not held by contract.

          A position is a public office if it meets the following three (3) requirements:

1. the position is prescribed by law and has a specified term;

2. the powers and duties of the position are defined by statute and include the authority to exercise some sovereign power of the state; and

3. the holder of the position must take an oath of office.

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

    The elected position of county superintendent of education is a public office and as such is not held by contract. Therefore, the school board member/parent is not prohibited by the conflict of interest laws from continuing to serve on the county school board should the child be elected county superintendent of education.

    Notwithstanding the above, Section 37-9-37, 1972 Mississippi Code Annotated (amended), states that the amount of the salary to be paid any superintendent shall be fixed by the school board.

    Furthermore, Code Section 25-4-105(1), cited above, prohibits public servants from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business with which they are associated.

    Therefore, the requestor/school board member must avoid using his official position to obtain a pecuniary benefit for his child by totally and completely recusing himself from the setting of his child's superintendent salary.

    An abstention is a vote with the majority of the governing entity's board and therefore does not qualify as a recusal.

    A total and complete recusal requires that the public servant not only avoid debating, discussing, or taking action on the subject matter during the official meeting, but also avoid discussing the subject matter with other board members, staff or any other person prior to and after the official meeting. This includes casual comments, as well as detail discussions, made in person, by telephone or by any other means.

    Also in order to properly recuse oneself from a matter, the public servant must leave the room or area where such discussions, considerations and/or actions take place. The minutes of the governing entity's board should state the public servant left the meeting by showing him or her absent for that matter.
 
 

Ronald E. Crowe Executive Director