OFFICIAL ADVISORY OPINION NO. 96-076-E
 
July 12, 1996

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 an individual serve as a member of a county school board if the individual's spouse continues her employment as an assistant teacher with that same county school district?
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:

"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.
(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.
"(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."
Pertinent facts and circumstances provided by the requestor, absent identifying data, are set
forth as follows and considered a part of this opinion.
The county school board position is up for re-election this November. My wife is employed as an assistant teacher for the county schools. The assistant teacher position is a non-contract position. Would I be eligible to serve if elected since my wife works for the county schools?
The Commission formally adopts Advisory Opinion No. 96-075-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.

As stated in the attached opinion, 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.

Therefore, the requestor would be in violation of the conflict of interest laws should he be elected to serve on the county school board and his spouse is re-employed as an assistant teacher with the county school district after he takes office.

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) 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.

The requestor should take specific note of the reference in the attached opinion to the Mississippi Supreme Court's decision in Smith v. Dorsey, 530 So. 2d 5 (1988).

Ronald E. Crowe Executive Director