May the spouse of a municipality's mayor be employed by that same municipality's housing authority?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.
I would like a ruling on the following circumstance:Mayor-Spouse relationship - can spouse be employed by same Municipality's Housing Authority Board.
The Housing Authority is under the General Laws of the State of Mississippi.The pertinent conflict of interest laws to be considered 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 25-4-101 states:"The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the state and local governments."Code Section 254-103(a), (g)(ii), (h), (1), (p)(i)(ii)(iii) and (q) states:"(a) 'Authority' means any component unit of a governmental entity.(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:(ii) Municipalities.(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;(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) 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."First, this Commission has consistency held that mayors of code chartered municipalities are board members for purposes of the conflict of interest laws. They are considered working members of their boards of aldermen with discretion and superintending powers and duties including the veto power and the responsibility to break tie votes.The Commission formally adopts Advisory Opinion No. 94-141-E in response to this request and by attachment incorporates it into this opinion. The related issue in the attached opinion concerns the spouse of a municipal council member serving as the appointed attorney for the municipality's housing authority board.
The requestor is directed to the discussion in the attached opinion concerning Sections 43-33- 1 et seq., 1972 Mississippi Code Annotated, which are the laws authorizing the establishment of housing authorities.
The Commission in the attached opinion stated, "...the above cited laws establishing the housing authority as a 'public body corporate and politic' results in it being a separate authority from the Mayor and Council for purposes of the conflict of interest laws."
The remainder of this opinion is written with the understanding that the housing authority receives no funding of any kind or no additional bond issuing authority from the mayor and board of aldermen. The Commission should be immediately notified if this understanding is not correct so that this opinion may be appropriately modified as such funding of the housing authority would result in the mayor having a prohibited interest in the spouse's employment contract in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2).
Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is the employment of the mayor's spouse by the housing authority board is not as such prohibited by Constitutional Section 109 and Code Section 25-4-105(2). The spouse's employment contract is authorized by an order of the housing authority board not the mayor and board of aldermen.
Notwithstanding the above, the mayor is cautioned to not use his or her official position to obtain the employment position for his or her spouse as doing so would violate the above cited Code Section 25-4-105(1).
Code Section 25-4-105(1) 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.
In order to avoid using their official positions to obtain a pecuniary benefit, the public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests. 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 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.
The issue presented by the requestor also must be viewed as it relates to Code Section 25-4- 101, set forth above. This code section sets the tone for the conflict of interest laws as it is the Legislature's "Declaration of Public Policy." This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.
Ronald E. Crowe Executive Director