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 October 6, 1995.

May the child of a chief of police become employed as a police officer by the same municipality employing the parent as chief of police?

          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 one such area of state law outside the jurisdiction of this Commission. Therefore, a response to your request in regard to the Mississippi Nepotism law must 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 a part of this opinion.

This correspondence is in response to a conversation I had with a staff member of the Attorney General's Office and Scott Rankin of your office concerning the Nepotism law or an ethics violation. Mr. Crowe, my son has applied with the City to become a Police Officer. Where I am currently the Police Chief. In speaking with the Attorney General's Office about the procedures, guidelines and the hiring process of the City Police Department, that Office did not feel that there was a Nepotism Violation. He suggested that I contact Scott Rankin, which I did. After hearing the process, Scott suggested that I write you a letter requesting an official opinion and that is the purpose of this letter. To give you a little back ground about the City and the City Police Department, the City is currently in a Mayor/Alderman form of government with the Appointing Authority having the power of hiring and discharging. The City, according to the 1990 census, has a population of 15,800. The City also has an established Civil Service Commission that is totally separate from the Police Department. The hiring process for the city, when an opening exists or a vacancy exist in a department, Civil Service notifies the public of the opening(s) and sets an examination date. The applicant must fill out an application and return the application to the Civil Service Board. The applicant is administered the test on the date that they posted for the public. Following satisfactorily passing the test, they send the results to the Police Department of those applicants that have past the test. Once they receive this list at the Police Department, the Police Department sets up a

date for a Physical Agility test that the applicant also must satisfactorily pass. Upon               completion of the Physical Agility test the applicant is given an oral interview. The Interview Board is composed of officers of the City Police Department. The Police Chief does not participate, nor grade any of the Physical Agility Testing or the Oral Interview Board. Following the Oral Interview Board the two grades, the Physical Agility and the Oral Interview Board, are calculated and a total combined score is sent back to the Civil Service Board. Upon receiving the score from the Police Department the Civil Service Board calculates the applicant's test score with the score sent back from the Police Department and establishes an eligible list. An individual applicant is placed on that list depending on how well he or she did on the total score. Following this, the eligible list is sent to the Police Department in the order of highest to lowest. This eligible list is also the hiring order. if an individual is passed over there has to be just cause to pass over that individual, such as a poor job performance in the past or some type of criminal record. This eligible list is good for one year from the date of the original testing. Upon satisfactorily completing a back ground investigation the names that remain are sent to the Civil Service Board and the Appointing Authority, which is the Mayor and Board of Aldermen, who will then either vote to hire the applicant or vote not to hire the applicant.

         The City Police Department consist of 24 sworn officers and 7 support personnel. The chain of command from the bottom is Patrol Officer, Sergeant, Lieutenant, Chief of Patrol and Chief of Police. Mr. Crowe, my question is whether I would be in some type of ethical law violation if the City hired my son as a Patrol Officer for the City Police Department.

         The pertinent conflict of interest laws to be considered here are:

         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),(p)(i)(ii)(iii) and (q) states:

"(g) 'Governmental' 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.

          (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 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.

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

          Code Section 25-4-105(1) 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."

          The Commission formally adopts Advisory Opinion No. 91-088-ER, with attachments, 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 finds that the municipality's employment of its police chief's child as a police officer does not as such violate the conflict of interest laws if done so under the procedures set forth above.

          Notwithstanding the above, the police chief must not in any way use his position as chief of police to promote his child's initial employment, compensation, raises in compensation or future promotions as to do so would violate 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.

          A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter in an official manner, but also avoid discussing the subject matter with 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. if the matter is brought up in a formal meeting, 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 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 servant having supervisory authority over his or her relatives has the potential of creating suspicion among the public and reflecting unfavorably upon the local government. This is especially true if the relative is a spouse, child or parent.
 
 

Ronald E. Crowe Executive Director