May an alderman's son serve as a police officer for the municipality the alderman serves when the son resides in the alderman's home?

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

"(f) 'Contract' means:

(i) Any agreement to which the government is a party; or

(ii) Any agreement on behalf of the government which involves the payment of public funds.

(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 the 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) 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."

I write this to you in my capacity as City Attorney having been authorized to do so by the City's Board of Aldermen and Mayor at their meeting held July 9, 1996. A similar letter was addressed to Mike Moore, Attorney General, a copy of which is enclosed for your review.

An Alderman's son is an eighteen (18) year old resident citizen of the City, who has had his disabilities of minority generally removed. A copy of the Court Order is enclosed for your review. At this time the Alderman's son resides in the home of his Father but is otherwise emancipated, and is prepared to move out of his Father's residence if necessary to effectuate his desire to become a policeman for the City.

The Alderman's son is desirous of becoming a policeman for the City with or without pay, residing at the home of his Father, or not, as is required by law. The Alderman's son is prepared to voluntarily waive any pay that he would be entitled to as a police officer.

Is it lawful under Section 109 of the Constitution and the ethics laws of the State of Mississippi for the Alderman's son to be hired as a police officer for the City, with or without pay, residing at the home of his Father or not residing at the home of his Father?

Please provide me your official opinion in regard to this matter.

Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.

Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a municipality from employing its alderman's son who resides with the alderman. It would not matter whether the alderman's son was being compensated or was donating his compensation to the municipality. The alderman/father still would have a prohibited interest in his son being trained by the municipality for a law enforcement career while the son resides with the alderman/father.

The attached opinion addresses the issue of a municipality's employment of its alderman's son who is completely and absolutely financially independent from the alderman. As stated in the attached opinion, an example of dependency would be where the son is living in the alderman's household.

Ronald E. Crowe Executive Director