May a municipality employ the son of one of its aldermen?

    The Attorney General has referred your letter of February 5, 1996, to the Mississippi Ethics Commission as it concerns an issue covered by the Mississippi Ethics in Government Law.

    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 governmental entity are not addressed by this opinion.

    The nepotism law, Code Section 25-1-53, is an area of state law outside the jurisdiction of this Commission. Therefore, the Attorney General's Office will address how the nepotism law may affect the above issue.
 

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(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 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."

    Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered part of this opinion.
 

I am considering running for our local city board of aldermen. If I am elected would it be a violation for my son to be hired as a police officer for the city.

My son is 23 years old and recently returned to the city to live after completing 4 years in the Navy. He has applied for a position on the city police force and is in the process of waiting to be considered for the next position to come open.

    The Commission formally adopts Advisory Opinion No. 90-084-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.

    If elected alderman, the requestor would have a direct and/or indirect interest in his son's employment contract with the municipality during his term or for one year thereafter in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2), unless his son is not dependent upon the alderman in any way. An example of dependency would be where the son is living in the alderman's household.

    The requestor would be required to prove that his son is completely and absolutely financially independent from him in order for the municipality's employment of his son during his term or for one year thereafter to not be prohibited by Constitutional Section 109 and Code Section 25-4-105(2).

    Furthermore, the requestor may not use his position as alderman to obtain a pecuniary benefit for his son. For example, the requestor would be required to recuse himself from any action before the board of aldermen that would increase his son 5 compensation or fringe benefits as a city police officer. Such an action would be prohibited by 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 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 detail 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 advised 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 member's vote, the authorization by the member's board nonetheless results in a contract in which the board member has a prohibited interest.

    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.

    Clearly, a municipality's employment of its alderman's son has the potential of creating suspicion among the public and reflecting unfavorably upon the municipality.

Ronald E. Crowe Executive Director