This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on January 5, 1996.

May a county have as its depository a bank that employs a newly elected supervisor's son as a vice president?

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

"(d) 'Business with which he is associated' means any business or 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.

(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties.

(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 a part of this opinion.

The Bank has served the County as a county depository for a number of years. The Bank's service to the County has been exemplary and the County would like to continue to use the Bank as a county depository in the future.

Two new officials were elected during the recent general elections to serve on the County Board of Supervisors. One of the newly elected supervisor's son is currently Vice President of the Bank.

Can the Bank continue to serve as county depository in light of the new supervisor's election to the County Board of Supervisors?

    In addition to the above facts, the requestor has advised the Commission's staff that the father/supervisor and the son/banker are totally and completely financially independent of each other. This financial independence includes no joint financial or business interests in which one's income would be dependent on the other's.

    The Commission formally adopts Advisory Opinion No. 94-081-E in response to this request and by attachment incorporates it into this opinion.

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

    If the father/supervisor and the son/banker are totally and completely financially independent of each other, it would not be a violation of Constitutional Section 109 and Code Section 25-4-105(2), cited above, for the county to continue to select the bank as the county's depository once the father takes office.

    Notwithstanding the above, Code Section 25-4-105(1), cited above, prohibits the father/supervisor from using his position to obtain a pecuniary benefit for a relative which would include his son/banker.

    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.

    Therefore, in order to avoid using his official position to obtain a pecuniary benefit for his son, the father/supervisor must totally and completely recuse himself from any matter coming before the board of supervisors that concerns the bank. 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 cautioned to advise the board member 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.
 
 
 
 

Ronald E. Crowe Executive Director