This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on June 7, 1996, basing its approval solely on the facts and circumstances stated herein.

May a teacher elected as a county board of supervisors' member leave his assigned duties as a teacher with the county school district to participate in the county board of supervisors' meetings?

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 entities' 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 25-4-101 states:

Code Section 25-4-103(f)(i)(ii), (g)(i)(iii), (h), (1) and (p)(i)(ii)(iii) 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.

(i) Counties; and

(iii) All school districts.

(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."

"(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.

Recently one of our instructors was elected to a County Board of Supervisors'
position. Our Board of Education would like clarification as to whether a conflict of
interest exists if this employee leaves his assigned duties within the school district to
participate in a county board of supervisors' meeting.

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

First, the issue presented by the requestor 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 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.

The county school district's board of trustees and the county superintendent of education must decide if allowing the school teacher to leave his assigned duties to attend the county board of supervisors' meetings has the potential of creating suspicion among the public and reflecting unfavorably upon the school district and, if so, reduce or eliminate the suspicion.

In applying the public policy standards set forth above, the school district's board of trustees
should develop written policies and procedures that apply equally to all teachers in regard to when they may be excused from their class duties. These policies and procedures should not provide greater latitude to a teacher that is a public servant such as a county supervisor.

However, a county school teacher's election as a member of the county board of supervisors is not prohibited by the above cited Constitutional Section 109 and Code Section 25-4-105(2). This is because the county board of supervisors and the county school district are separate governmental entities and because since passage of the Mississippi Uniform School Law the county board of supervisors no longer has any discretion in setting the levy and/or the amount of funding for the county school district.

Notwithstanding the above, a county school teacher elected to the county board of supervisors must remain keenly aware of 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 detailed 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.

Therefore, the county school teacher must totally and completely recuse himself from any action coming before the county board of supervisors that concerns the county school district.

Ronald E. Crowe Executive Director