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 July 7, 1995.

May the attorney for a municipal housing authority continue to represent the housing authority if the attorney's father-in-law is appointed to the housing authority's board of commissioners by the municipal governing board?

    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.

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(g)(v), (h), (1), (p)(i)(ii)(iii) and (q) states:

"(g) 'Government' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(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.

(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, direct or indirect, 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."

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

As you probably know, when a vacancy exists on a local public housing authority Board of Commissioners, the local Board of Aldermen appoint someone to serve on the housing authority board.

The Housing Authority of the City wants to ask our local Board of Aldermen to consider appointing a man to our Board of Commissioners who is the father-in-law of our housing authority attorney.

The attorney is not on retainer but is used as needed. Since dollar amounts sometimes matter in certain cases, let me say that we probably will not pay over $500.00 for the attorney's services this year and have not in past years.

Would a conflict of interest exist if the attorney's father-in-law is appointed? if so, and the housing authority ceased to use this attorney, what period of time would have to pass before the conflict no longer existed?

    In addition to the above facts and circumstances, the requestor informed the Commission's staff that the son-in-law and daughter are financially independent and free from the control of the father-in-law and, in a like manner, the father-in-law has no financial dependence or involvement with the son-in-law and daughter.

    The Commission formally adopts Advisory Opinion No. 94-107-E in response to this request and by attachment incorporates it into this opinion.

    First, the requestor is advised that this Commission has consistently held that a benefit accruing to one spouse accrues equally to the other. Therefore, any pecuniary benefit to the son-in- law/attorney would accrue to the father-in-law/appointee's daughter.

    Based solely on the facts and circumstances provided by the requestor, the Commission finds that the father-in-law has no apparent direct or indirect interest in the son-in-law's contract(s) with the housing authority. Therefore, the father-in-law's appointment to the housing authority commission would not as such be prohibited by the above cited Constitutional Section 109 and Code Section 25-4-105(2).

    The father-in-law is cautioned to not use his official position to obtain a pecuniary benefit for his son-in-law or daughter in violation of 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 other board members, staff or any other person prior to and after the official meeting. This includes casual comments, as well as detailed 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 case, the father-in-law must recuse himself from all matters coming before the housing authority commission affecting his son-in-law/attorney.

    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 and local government.

    A governmental entity contracting with a relative of one of its board members always has the potential of creating suspicion among the public and reflecting unfavorably upon the governmental entity.
 

Ronald E. Crowe Executive Director