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 county school district expend federal program funds to provide optometrist services to students when the optometrist providing the services is the spouse of the recently elected county superintendent of education?

The requestor is advised to contact the Office of the State Attorney General to determine if the situation presented herein would violate Section 37-11-27, 1972 Mississippi Code Annotated, or any other Mississippi laws outside the Commission's jurisdiction.

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:

"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(c), (d), (f)(i)(ii), (g)(iii), (h), (k)(i)(ii)(iii)(iv), (1), (o), (p)(i)(ii)(iii) and (q) states:

"(c) 'Business' means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a non-profit corporation or other such entity, association or organization receiving public funds.

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

(k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00);

(iii) The income as an employee of a relative if neither the public servant or relative is an officer, director or partner in the business and any ownership interest would not be deemed material pursuant to subparagraph (i) or (ii) herein; or

(iv) The income of the spouse of a public servant when such spouse is a contractor, subcontractor or vendor with the governmental entity that employs the public servant and the public servant exercises no control, direct or indirect, over the contract between the spouse and such governmental entity.

(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.

(o) 'Public funds' means money belonging to the government.

(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), (2) , (3)(a) and (4)(d) 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.

(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.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(d) May be a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent or have a material financial interest in a business which is a contractor, subcontractor or vendor with any authority of the governmental entity of which he is a member, officer, employee or agent: (i) where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws; or (ii) where the contractual relationship involves the further research, development, testing, promotion or merchandising of an intellectual property created by the public servant."

I am requesting your opinion on the matter I discussed on the phone today with your staff member.

There is a recently elected Superintendent of the County Schools. An optometrist is related to her and is the only optometrist in the County. A limited number of students are referred to him by the Federal Program Co-ordinator. Federal program  money pays the charges incurred by these students.

It is a matter of convenience for these students, as the next closest doctor is approximately forty miles away in another city.

Please review the factors in this matter and give your opinion if we will be allowed to use this optometrist for additional services.

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

Constitutional Section 109 and Code Section 25-4-105(2), both cited above, would prohibit a school board member's spouse from providing optometrist services to students when the school district pays the charges for the services from federal program funds.

However, the Commission's attached opinion found that a superintendent of education has ministerial duties and no power to vote on matters considered by the local school board. Therefore, the superintendent of education was not considered a school board member for purposes of Constitutional 109 and Code Section 25-4-105(2).

Based on the attached opinion, the elected county superintendent of education's spouse's providing of optometrist services to students that the school district pays from federal program funds is not prohibited by Constitutional Section 109 and Code Section 25-4-105(2).

Notwithstanding the above, an elected county superintendent of education is subject to the prohibitions set forth in the above cited Code Section 25-4-105(3)(a).

Code Section 25-4-105(3)(a) prohibits a public servant from having a material financial interest in a business which is a contractor, subcontractor or vendor with the public servant's governmental entity.

A material financial interest is defined in the above cited Code Section 25-4-103(k). Subject to certain exceptions, a material financial interest means "a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or it' combination with each other." [Emphasis added]

The facts and circumstances presented by the requestor clearly reflect that the newly elected superintendent of education would have a material financial interest in her spouse's optometrist practice. Therefore, Code Section 25-4-105(3)(a) would prohibit the school district's continued referral of students to the superintendent's spouse when the school district pays for the optometrist
 services from federal program funds.

Though a situation may be prohibited Code Section 25-4-105(3)(a), a public servant or his/her relative can continue with the prohibited transaction under certain limited situations that are set forth in Code Section 25-4-105(4).

Code Section 25-4-105(4)(dXi), cited above, is one such limited situation. This section allows a governmental entity to contract with a business that one of its public servants has a material interest in "where such goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws."

The Commission has consistently held that the exception set forth in the above cited Code Section 25-4-105(4)(d)(i) does not limit a good or service reasonably available from two (2) or fewer commercial sources" to a specific geographical area such as a county.

However, the transporting of students 40 miles for optometrist services during the school day is clearly a situation that can be considered as unreasonable. Therefore, the optometrist services provided by the superintendent of education's spouse can be considered "reasonably available from two (2) or fewer commercial sources."

The school district may continue to use the superintendent of education's spouse for optometrist services for students when the school district pays the services from federal program funds without her being in violation of Code Section 25-4-105(3)(a).

The superintendent of education also must remain keenly aware of Code Section 25-4-101 and Code Section 25-4-105(1), both cited above.

Code Section 25-4-105(1) prohibits the superintendent of education during her term of office from using her official position to obtain referrals of students for her spouse's optometrist business.

In order to avoid using her official position to obtain a pecuniary benefit for her spouse, the superintendent of education must totally and completely recuse herself from the subject matter providing the pecuniary interests.

A total and complete recusal requires that a public servant avoid debating, discussing or taking action on the subject matter during official meetings, as well as, 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, a 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 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 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 school board must determine whether the situation presented here is so offensive to the above stated "Declaration of Public Policy" that the school district should stop referring students to the new superintendent of education's spouse's optometrist business, even though to do so would be a hardship.

The requestor is cautioned that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105(2). Even without a 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.

This opinion will not longer be applicable if the facts and circumstances presented by the requestor change because of other optometrist services becoming available to the school district's students.

Ronald E. Crowe Executive Director