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 May 5, 1995.
Are the Mississippi Ethics in Government laws violated should a county annually appropriate funds to authorities of the county government, such as a community hospital, library or economic development authority, if these authorities are employing relatives of members of the county board of supervisors that are within the first, second or third degree of kinship?
         Your opinion request to the Office of the Attorney General dated February 23, 1995, was referred by that Office to the Mississippi Ethics Commission on April 6, 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.
         The Mississippi Nepotism law, Section 25-1-53, 1972 Mississippi Code Annotated, is an area of state law outside the jurisdiction of this Commission. Therefore, any response to your request in regard to the Mississippi Nepotism law should come from the Office of the Attorney General.
         Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered part of this opinion.
Is it a conflict of interest for a relative, within the first, second, or third degree of kinship, of a county supervisor to be employed by an agency in which the county allocates a yearly appropriation? An agency, in this case, might be, but not limited to, a hospital, library, or economic development authority, etc.
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 unfavourably upon the state and local governments."
Code Section 25-4-103(a), (g)(I)(v), (h), (1), (p)(I) and (q) states:
"(a) 'Authority' means any component unit of a governmental entity
(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties
(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;

(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."
         Based solely on the facts and circumstances presented by the requestor, the Commission offers the following opinions.
        Should the relative to be employed by an authority of the county flunked by the board of supervisors be the spouse of a supervisor, the supervisor would violate the above cited Constitutional Section 109 and Code Section 25-4-105(2).
        The Commission has consistently held that any interest possessed by one spouse inures to the benefit of the other spouse.
        The board of supervisors' vote to fund the authority has as its effect the authorization of the spouse's contract. Therefore, the supervisor has an interest in a governmental contract, in this case his or her spouse's employment contract.
        Should the relative(s) to be employed by an authority of the county flunked by the board of supervisors be a parent or child of a supervisor, the supervisor would violate Constitutional Section 109 and Code Section 25-4-105(2), if the child or parent is not totally financially independent from the supervisor.
        As to relatives other than a spouse, parent or child, they are not a "relative" as defined by the above cited Code Section 25-4-103(q), and therefore the conflict of interest laws are not applicable. However, the above referenced Nepotism law may apply so the inquiry to the Office of the Attorney General is appropriate.

         The requestor is cautioned to advise the supervisor to recuse himself or herself in order to avoid an appearance of impropriety under the above cited Code Section 25-4-101 in the employment of any relative, when not prohibited as stated above, and in particular to avoid a violation of the above cited Code Section 25-4-105(1) in the employment of a financially independent child or parent.
        A proper recusal occurs when the public servant totally removes himself or herself from the pertinent matter by not officially or unofficially taking part or action regarding the subject matter and leaves the room or area where such discussions, considerations or actions take place. The minutes of the governing authority board should state that the public servant left the meeting by showing him or her absent for that matter.
        The requestor is also cautioned to advise the supervisor 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 board of supervisors.

Ronald B. Crowe Executive Director