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 December 1, 1995.
 

May a county supervisor-elect upon taking his oath of office continue his employment as a security guard with the county school system?
 
    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 governmental entities are not addressed by this opinion.
 
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(a), (f)(i)(ii), (g)(i)(iii), (h), (1) and (p)(i)(ii)(iii) states:

"(a) 'Authority' means any component unit of a governmental entity.

(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:

(i) Counties; and

(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 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.

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."

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

I am a new elected Supervisor for the County. I am presently employed as a Security Officer for the County School District and I am a certified police officer.

May question is, can I hold a Supervisor's position and still be employed by the school system?

         The Commission formally adopts Advisory Opinions No. 92-103-E and No. 94-050-E in response to this request and by attachment incorporates them into this opinion.

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

        As stated in Advisory Opinion No. 92-103-E, it is not as such a violation of the conflict of interest laws for a county supervisor to be employed by the county school district as long as the school district's tax levy approved by the county board of supervisors is limited to the mandatory amount requested by the school district.

        Notwithstanding the above, the existence of contracts between the school district and the county, especially an interlocal agreement, such as those described in Advisory Opinion No.94-050-E , would result in the supervisor being in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2). The board member would hold an inherent interest in the contracts with the school district authorized by the board of supervisors during his term or for one (1) year thereafter.

        The requestor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2). Even without a board member's vote, the authorization by the member's board nonetheless results in a contract in which the board member has a prohibited interest.

        Furthermore, the requestor must remain keenly aware of Code Section 25-4-105(1), cited above, should the existing circumstances allow him to continue his employment with the school district without violating Constitutional Section 109 and Code Section 25-4-105(2).

        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 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.

        In this instance, the supervisor-elect upon taking office should recuse himself from all matters coming before the board of supervisors that concern his school district employer.
 

Ronald B. Crowe Executive Director