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 June 9, 1995.

May an alderman vote to approve and pay the municipality's docket of claims when it includes invoices from a hardware store owned by the alderman's brother?

     Your opinion request to the Office of the Attorney General dated May 17, 1995, was referred by that Office to the Mississippi Ethics Commission on May 22, 1995, as the issue presented concerns the Mississippi conflict of interest laws.

     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 part of this opinion.

This is to request an opinion in regard to the admissibility of an alderman voting to accept/pay the docket of claims wherein the Town has purchased items from a hardware store, which is owned by the alderman's brother. Said hardware store is the only hardware store inside the city limits, and items have been purchased there by the Town for years prior to the alderman taking office.

The pertinent conflicts 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)(ii), (h), (1), (m), (1))(i) and (q) states:

"(g) 'Government' 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.

(I) '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.

(m) 'Person' means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.

(p) 'Public servant' means:

(i) Any elected or appointed official of the government.

(q) 'Relative' means the spouse, child or parent."

Code Section 25-4-105(1), (2) and (5) 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.

(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself any relative, or any other person, if the information has not been communicated to the public or is not public intormation."

      Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is that the alderman's vote to approve the claims docket which includes purchases from a hardware store owned by the alderman's brother is not as such prohibited by the Government in Ethics laws, Sections 25-4-101, et seq, 1972 Mississippi Code Annotated, as a brother is not included in the definition of "relative" set forth in the above cited Code Section 25-4-103(q).

     The alderman is advised to recuse himself or herself in order to avoid an appearance of impropriety under 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 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.

     However, should there be existing financial interests between the alderman and his or her brother that could be directly or indirectly affected by the overall success of the brother's hardware store, such financial interests would result in the alderman being interested, directly or indirectly, in the contracts between the municipality and the brother's hardware store in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2).

     The requestor is cautioned to advise the alderman that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2) because neither removes the prohibited interest in a contract authorized by the alderman's board.
 
 

Ronald E. Crowe Executive Director