May a municipal park and recreation commission employ or contract with its members and/or the members' relatives?State law restricts the Mississippi Ethics Commission 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, this opinion does not address the Mississippi laws outside the Commission's jurisdiction nor the governmental entity's internal rules and regulations.
The pertinent conflict of interest laws to be considered here are:
"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."Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
Code Section 25-4-103(f)(i)(ii), (g)(ii)(v), (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; and(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.(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.
(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."
What are the guidelines for commissioners who serve as commissioners of the municipality's parks and recreation department in relation to the duties and pay for work or services rendered?The Commission's staff after discussions with the requestor determined that the request concerns whether a municipal park and recreation commission can employ or contract with its members or the members' relatives.
The Commission formally adopts Advisory Opinion No. 92-121-E 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's opinion is as follows.
Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit the municipal park and recreation commission from contracting with or employing its members, its members' spouses and its members' financially dependent children or parents. An example of a financially dependent relative is one that lives in the member's household.
The requestor is cautioned to advise the board members that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2). Even without the board members' votes, the authorization by the members' board nonetheless results in contracts in which the board members have prohibited interests.
In addition, Code Section 25-4-105(1), cited above, prohibits the municipal park and recreation commission members from using their official positions to obtain a pecuniary benefit for their relatives. Therefore, even if the members' children or parents were financially independent from the members, they must fully and completely recuse themselves from any official or unofficial actions that provide a pecuniary benefit to their relatives.
In order to avoid using their official positions to obtain a pecuniary benefit for a relative, 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 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 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 municipal park and recreation commission contracting with or employing its members' relatives creates suspicion among the public and reflects unfavorably upon the municipality.
The requestor also is advised to ask for an official opinion from the Office of the Attorney General concerning how the Nepotism Law would affect this issue. The Nepotism Law prohibits public officials from employing their relatives within the third degree in certain positions that are compensated with public funds.
Ronald E. Crowe Executive Director