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 hoard of supervisors employ the child of the county's justice court clerk as a part time deputy justice court clerk?

The pertinent conflict of interest laws to be considered here are:

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 &e in violation of this trust and which will not reflect unfavorably upon the state and local governments."

Code Section 25-4-103(g)(i), (h), (1), (1))(i)(ii)(iii) and (q) states:

"(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties.

(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.

(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.

(q) 'Relative' means the spouse, child or parent."

Code Section 25-4-105(1) and (5) 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.

(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information."

I write this letter as attorney for the County Board of Supervisors to request your opinion on a question concerning the Ethics in Government Act.

Necessary workers for the County Justice Court offices are employed by the Board of Supervisors. We are presently in need of part time help through the summer in the

Justice Court Clerk's offices. What is needed is a Deputy Justice Court Clerk for part time employment. Among the available persons for the position is a daughter of the present Justice Court Clerk. This person would be a "relative" of the present clerk under Section 254-103, but the person is not related to any of the Supervisors of the County. Do you consider that there would be any ethical violation if the County Board of Supervisors employed a relative of the present Justice Court Clerk to act as part time Deputy Justice Court Clerk through the summer months?

I also would ask whether you feel there would be any ethical violation under Section 25-4-105(5) since the Board of Supervisors does not routinely make public advertisement for filling of positions of this nature.

Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is that the board of supervisors' employment of its justice court clerk's child as a part time deputy justice court clerk is not as such prohibited by the conflict of interest laws.

Notwithstanding the above, the justice court clerk must remain keenly aware of the above cited Code Section 25-4-105(1) and (5).

The justice court clerk must not in any way use her position as clerk of the justice court to promote or induce her child's initial employment, compensation, raises in compensation, hours worked or future promotions as to do so would violate 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.

A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter in an official manner, but also avoid discussing the subject matter with 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. If the matter is brought up in a formal meeting, 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.

Code Section 25-4-105(5) prohibits a public servant from using non-public information obtained through one's public position that could result in a pecuniary benefit for the public servant's relative.

Since the position of part time deputy justice court clerk is not being advertised, the prohibition set forth in Code Section 25-4-105(5) is applicable to this situation. Therefore, any action on the part of the justice court clerk that could result in her child's employment would violate Code Section 25-4-105(5).

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 public servant having supervisory authority over his or her relatives has the potential of creating suspicion among the public and reflecting unfavorably upon the local government. This is especially true if the relative is a spouse, child or parent.

Ronald E. Crowe Executive Director