OFFICIAL ADVISORY OPINION NO. 96-lOO-E
 

This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on August 2, 1996, basing its approval solely on the facts and circumstances stated herein.

1. May an employee of a municipal park commission also serve as a member of the park commission?

2. May a municipal employee serve as a member of the municipality's park commission if he or she is not employed in the municipality's park department?

3. May a municipal park commission employ the relatives of a member of the park commission?

4. Are the responses to the above issues the same if the members of the park commission are serving on an interim basis?

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:

Code Section 25-4-103(a), (f)(i)(ii), (g)(ii)(v), (h), (1), ~)(i)(ii)(iii) and (q) states:

"(a) 'Authority' means any component unit of a governmental entity.

(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.

(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), (2), (3)(a) and (4)(h) 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.

(3) No public servant shall:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee."

It is the Commission's understanding that the requestor's letter concerns a municipal park commission established under Section 21-37-33, 1972 Mississippi Code Annotated. A municipal park

commission established under this law has members that serve a set term, hire and fire the municipal park department's employees, have jurisdiction over the park department's funds and purchasing, and have other general and specific powers and duties over the municipal parks.

The Commission formally adopts Advisory Opinion No. 96-095-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.

Issue 1. Code Section 25-4-105(3)(a), cited above, prohibits employees of an authority of a governmental entity from being appointed to the governing board of that authority of a governmental entity.

In addition, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, would prohibit the employees of an authority of a governmental entity from serving on the governing board of that authority of a governmental entity after the approval of the budget, an increase in wages, a re-employment action or any other action that in effect authorizes the employment contracts.

Issue 2. Code Section 25-4-105(4)(h), cited above, allows a public servant to be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee.

Issue 3. Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit a municipal park commission from contracting with or employing 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.

In addition, Code Section 25-4-105(1), cited above, prohibits the municipal park 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 frilly 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 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)or (3)(a). Even without the board members' votes, the authorization by the members' board nonetheless results in contracts in which the board members have prohibited interests.

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.

Issue 4. The requestor is advised that municipal park commission members serving on an interim basis would not change the findings set forth in the above issues.

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.

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 commission contracting with or employing its members' relatives or contracting with or employing other municipal authorities' employees 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 these issues. 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