May an elected county superintendent of education upon the expiration of his term of office accept immediate employment with the school district he served as elected county superintendent of education?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 a part of this opinion.
This is to request an opinion from the Ethics Commission concerning whether or not a violation of state law relating to ethics in government would occur in the following situation. Specifically, would these laws be violated if a current elected superintendent of education of a local school district, who was not re-elected, is hired in the same district he presently serves, by the newly elected superintendent of education who will take office in January 1996. Apparently, the outgoing superintendent would be hired immediately thereafter.The pertinent conflict 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(e), (f)(i)(ii), (g)(iii), (h), (1) and (p)(i) states:"(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.(g) 'Governmental' 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.(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 government."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 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."Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.The Mississippi Supreme Court in Moore ex rel. v. McCullough, 633 So.2d 421 Miss. 1993), held that a public servant with purely ministerial duties and with no power to vote on matters considered by the governmental entity with which he is associated is not a "member" of that entity within the meaning of the section of the Ethics in Government laws prohibiting a public servant from being a contractor with the governmental entity of which he is a member.
Although the McCullough ruling involved a different section of the conflict of interest laws than those now under consideration here, it is pertinent in that the key in responding to this request is whether a county superintendent of education would be interested, directly or indirectly, in his employment contract with the school district authorized by any order made by the board of which he may have been a member, within one year after the expiration of such term. emphasis added.
The Commission has reviewed Sections 37-9-1 et seq., 1972 Mississippi Code Annotated, concerning district superintendents, principals, teachers and other employees of local school districts. Specifically, Code Section 37-9-14, "Duties and powers of superintendent of school district," has been reviewed.
The review of the above referenced sections indicate the superintendent of education has ministerial duties and no power to vote on matters considered by the local school district.
Therefore, the Commission's opinion is that the elected county superintendent of education's acceptance of immediate employment with the school district he served as superintendent upon the expiration of his term of office is not prohibited by the above cited Constitutional Section 109 and Code Section 25-4-105(2).
Notwithstanding the above, the superintendent may not during his term of office use his position to obtain future employment with the local school district he serves as superintendent of education. The superintendent as a public servant may not in any manner suggest, lobby, discuss or otherwise use his influence to obtain this employment as to do so would be to obtain a pecuniary benefit for himself in violation of Code Section 25-4-105(1).
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.
Ronald E. Crowe Executive Director