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 office continue in his present employment as a counselor/social worker with the county/municipal 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 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(f)(i)(ii), (g)(i)(iii), (h), (1) and (p)(i)(ii)(iii) states:

"(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 part of this opinion.

I have been elected Board of Supervisor for the County. I am presently employed at the county/municipal School District as a counselor/social worker. I would like to continue my employment at the county/municipal School District on a part time schedule. Please advise me as soon as possible regarding the ethic violation or a conflict of interest.

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

          Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is that the supervisor's employment by the county/municipal school district during his term of office when his county provides only the minimum mandatory funding to the county/municipal school district is not prohibited by the conflict of interest laws.

          Notwithstanding the above, the county's providing of funding beyond the minimum mandatory level or the county's entering into contracts with the county/municipal school district, as described in the attached opinions, once the requestor has taken office as a county supervisor would result in violations of the above cited Constitutional Section 109 and Code Section 25-4-105(2).

          The requestor is advised to also remain keenly aware of the restrictions set forth in the above cited Code Section 25-4-105(1). In order to avoid a violation of Code Section 25-4-105(1), the requestor upon taking office as a county supervisor must recuse himself from all matters coming before the board of supervisors concerning the county/municipal school district as long as he remains in the employment of the school district.

          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.

          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 the requestor's vote, the authorization by the board of supervisors nonetheless results in a contract in which the requestor has a prohibited interest.
 
 

Ronald E. Crowe Executive Director