This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 12, 1996, basing its approval solely on the facts and circumstances stated herein.

May the spouse of a newly elected school board member be re-employed by the school district once the newly elected school board member has taken office?

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:

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(f)(i)(ii), (g)(iii), (h), (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:

(iii) All school districts.

(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) 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(2) and (3)(a) states:

(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."

I am a member of the school board. I was elected in November 1995 and begin to serve on the board on January 1, 1996. My wife is employed by the school district, she has been working in the school district for the last 10 years as a teacher assistant. I have been informed that since I am on the school board she can no longer be rehired to work in the school district, that it is a conflict of interest, per the ethics commission. I am requesting a written ruling from your office stating that it is unlawful or illegal for my wife to continue working in the school district that I serve on the board of trustees.

Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
 
The above cited Constitutional Section 109 and Code Section 25-4-105(2) and (3)(a) prohibit the school district's re-employment of the school board member's spouse during his term, and for one (1) year thereafter.

In Smith v. Dorsey, 530 So. 2d 5 (1988), the Mississippi Supreme Court affirmed an order of a chancery court as to defendant school board members whose spouses were employees of the school district they served. The order found the school board members were violating Constitutional Section 109; declared null and void the employment contracts of the defendants' spouses; and enjoined any salaries or other payments to the spouses while the defendant school board members were on the board of trustees and for one (1) year after the defendant school board members left the board of trustees.

The attached opinions concern school board members' spouses employed as a cafeteria manager, a substitute employee, a school bus driver and a secretary of the school districts served by the school board members. The above conflict of interest laws prohibited the school board members' spouses' employment in these positions. Clearly, the requestor's spouse being employed as a teacher assistant by the school district the requestor serves as a board member also is prohibited by the above conflict of interest laws.

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) and (3)(a). 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