May a municipal school board hire one of the sons of one of its board of trustees' members as an architect on a school bond project and the other son, or the son's law firm, as the legal representative for the 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 thereot, 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 affer 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(f)(i)(ii), (g)(iii), (h), (1), (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 finds.

(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) '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 finded by public finds or which expends, authorizes or recommends the use of public finds; 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."

After further thought, I decided to officially request a ruling on the matter we discussed earlier.

The School District is governed by a five member Board of Trustees. One of our board mernbers has two tully self supporting sons in the community, one of which is an architect and the other a lawyer.

Is it a conflict of interest for the son who is an architect to be hired to serve as a board architect on a school bond project?

Is it a conflict of interest for the son who is a lawyer to be hired to represent the Board of Trustees as legal representative for the school district? How about another member of the son's law firm?

The school board member would have a direct and/or indirect interest in his or her sons' employment contracts with the school district in violation of Constitutional Section 109 and Code Section 25-4-105(2), both cited above, unless the sons are not financially dependent in any way upon the school board member. The school board member would be required to prove that his or her sons are completely and absolutely financially independent from him or her in order for the school board's employment of his or her sons to not be prohibited by Constitutional Section 109 and Code Section
25-4-105(2).

Notwithstanding the above, the school board member may not use his or her official position to obtain the employment contracts for his or her sons. The above cited Code Section 25-4-105(1) would prohibit such an action.

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 qualif~r 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.

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 school district's employment of the sons of one of its board members has the potential of creating suspicion among the public and reflecting unfavorably upon the school district.

It is the Commission's understanding that the professional rules governing attorneys consider any contract held by a meinber of a law firm to be actually held by the law firm. This understanding is consistent with opinions of the Mississippi State Bar.

Therefore, this opinion applies whether the school board's contract is with the board member's son or another member of the son's law firm.
 

Ronald E. Crowe Executive Director