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 public school teacher continue in that position after being elected to the State Legislature?

         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 Separation of Powers Doctrine, Article I, Section 2, Mississippi Constitution of 1890, is an area of state law outside the jurisdiction of this Commission. Therefore, the requestor is advised to contact the Office of the Attorney General regarding the application of the Separation of Powers Doctrine to this issue.

         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 25-4-101 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 25-4-103(e), (f)(i)(ii), (g)(iii)(v), (h) and (p)(i)(ii)(iii) states:

"(e) 'Compensation' mean 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; and

(v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.

(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.

(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), (2) and (3)(d)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.

(3) No public servant shall:

(d) Perform any service for any compensation during his term of office or employment by which he attempts to influence a decision of the authority of the governmental entity of which he is a member."

         Pertinent facts and circumstances provided by the requestor, absent identifying data, in the form of the requestor's letter, dated November 27, 1995, are attached and considered part of this opinion.

         The Commission formally adopts Advisory Opinion No.90-115-E in response to this request and by attachment incorporates it into this opinion.

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

         The teacher/legislator will be in violation of Constitutional Section 109 and Code Section 25- 4-105(2), both cited above, upon entering into a contract with the school district for the school year that the appropriation bill passed during the teacher/legislator's first session applies. In other words, the teacher/legislator may complete the school year covered by his or her existing contract without violating Constitutional Section 109 and Code Section 25-4-105(2).

         Notwithstanding the above, the teacher/legislator during his or her first legislative session must remain keenly aware of the above cited Code Section 25-4-105(1) and (3)(d). The teacher/legislator must recuse himself or herself from any matter coming before the State Legislature during this first session that concerns public school districts and/or public school teachers in order to avoid a violation of Code Section 25-4-105(1) and (3)(d).

         Code Section 25-4-105(1) prohibits a public servant from using his or her official position to obtain a pecuniary benefit for himself or herself; a relative and/or any business with which the public servant is associated.

         Code Section 25-4-105(3)(d) prohibits a public servant from performing a service for compensation during his or her term of office by which the public servant attempts to influence a decision of the authority of the governmental entity of which he or she is a member.

        In order to avoid such violations, public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests and/or compensation. 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 cautioned to advise the teacher/legislator 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 teacher/legislator's vote, the authorization by the State Legislature nonetheless results in a contract in which the teacher/legislator has a prohibited interest.

         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.

         Clearly, a public school teacher serving in the State Legislature has the potential of creating suspicion among the public and reflecting unfavorably upon the State Legislature.
 
 

Ronald F. Crowe Executive Director