This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on December 6, 1996, basing its approval solely on the facts and circumstances stated herein.

May a county school board member's company sell to the county and/or the county school district?

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 25-4-103(d), (f)(i)(ii), (g)(i)(ii)(iii)(iv)(v), (h), (1) and (p)(i)(ii)(iii) states:

"(d) 'Business with which he is associated' means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.
(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:

(i) Counties;

(ii) Municipalities;

(iii) All school districts;

(iv) All courts; 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.

(1)) '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."

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."

Recently, I officially became a candidate for the school board in my County. At that time you and I discussed the ethics of my company selling office supplies to a government agency of which I would be an elected member. At the end of our conversation you faxed several opinions for my review.

As I understand, since I was elected to serve on the County School Board, I can still sell to the County but must curtail all sales or bids to the County School System. I am at this time requesting an official letter for my file as guidance. Also, please advise how I should handle teachers or school personnel who come by my business to purchase, by school purchase order, office supplies. Do I refuse to sell to them, or is it permissible to complete the sale? I personally do not have any knowledge of the transaction or input when this happens. However, I will instruct our employees to decline the sale if we are instructed to do so by the Ethics Commission.

Constitutional Section 109 and Code Section 25-4-105(2), both cited above, prohibit the school board member from being interested, directly or indirectly, in any contract authorized by the school board during the member's term or for one year thereafter. This prohibition includes the school board member's company being a vendor with the school district or conducting sales paid out of school district funds. Therefore, the school board member's company may not sell to the school district through a bid process, through walk-in business by school employees or through any other means.

The conflict of interests laws do not prohibit a school board member's company from selling to governmental entities other than the member's school district. Therefore, the school board member's company may contract with any "government" or "governmental entity," as defined in the above cited Code Section 25-4-103(g) and (h), as long as the school district is not involved in the authorization or funding of the other governmental entity's contract. A county is a "government' as defined by Code Section 25-4-103(g)(i).

The requestor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2). Even without the requestor's vote, the authorization by the requestor's school board nonetheless results in a contract in which the requestor has a prohibited interest.

Notwithstanding the above, the requestor is advised to remain keenly aware of the above cited Code Section 25-4-105(1) should the board member's company contract with the county..

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.

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. 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.

Therefore, the school board member should recuse himself from matters coming before the school district board concerning the county, or other governmental entities, with which his company contracts.

Ronald E. Crowe, Executive Director