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 a parent of an alderman be a contractor under a home renovation grant funded by federal funds when the alderman's municipality is the recipient of the grant through an agreement with a state agency?

          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 a part of this opinion. The referenced grant documents because of their volume are not attached but are available for review, absent identifying data, in the Commission's office.

On October 18, 1994, the City was granted a Homeowner Rehabilitation Grant as attached. This passed unanimously by the board.

The administrator and engineer is a private, professional engineering firm.

The City began to apply for this grant in May 1994.

My question is this. Can the father of an alderman be a contractor for this homeowner renovation grant? I understand the City had a terrible time finding contractors to do the renovation work for these 23 homes. I am attaching a letter from the state agency, which the grant was obtained from, with their opinion. They contend that the agreement is between the Contractor and the Recipient and has nothing to do with the City.

          In addition to the above facts and circumstances, the requestor advised the Commission's staff that the engineering firm serving as the grant's administrator compiled a list of contractors for use by the approved homeowners. The alderman's father is one of the contractors on the list. The list was compiled matter the municipality's governing authority authorized the application for the grant and actually entered into the grant agreement.

          Furthermore, the requestor advised that the alderman is totally independent of his parent and does not have joint financial interests with the parent including the construction business.

          Should in the future any of these facts and circumstances be found to be incorrect, this Commission should be notified immediately as this opinion will no longer apply.

          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."

          Based solely on the facts and circumstances presented by the requestor, the Commission finds that the alderman's parent being a contractor for homeowners who are participating in a homeowner renovation grant obtained by the alderman's municipality does not as such violate the conflict of interest laws.

         Notwithstanding the above, the alderman must not in any way use his official position to obtain a pecuniary benefit for his parent 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 his official position to obtain a pecuniary benefit for his parent, the alderman must totally and completely recuse himself from subject matters providing the pecuniary benefit to the parent. 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.

          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.

          In regard to Code Section 25-4-101, the alderman should not only recuse himself from matters providing a pecuniary benefit to the parent in order to not violate Code Section 25-4-105(1), but should recuse himself from all matters relating to the grant in order to avoid any appearance of impropriety.
 
 

Ronald E. Crowe Executive Director