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 an alderman be employed as a principal of the school district for the municipality he was elected to serve when during his term he voted to appoint or reappoint three of the current trustees of 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 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(f)(i)(ii), (g)(i)(ii)(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.

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

(i) Counties;

(ii) Municipalities; and

(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.

(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."

Code Section 25-4-105(1) 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."

I represent the School District and the District requests an opinion from the Ethics Commission on the following matter:

The District presently has a vacancy for the position of a High School Principal. One of the applicants presently serves as a member of the Board of Aldermen of the City; having been elected to said position in the last Municipal election, and having taken office on July 1, 1993. The School District is a municipal school district and the Board of Trustees of the District are appointed by the Board of Aldermen of the City.

Board members' terms have expired, and thus, three board members have been appointed or re-appointed to the School Board since the Alderman took office. It is my understanding that in the event the Alderman is elected by the School Board to fill the position, he would desire to serve the remainder of his term as an Alderman, which would expire on July 1, 1997.

The question that the School Board has is whether or not the employment of this individual would constitute a violation of Article IV, Section 109 of the Mississippi Constitution and/or Section 25-4-105(2) of the Mississippi Code of 1972 as amended, since the prospective employee served on the Board of Aldermen and participated in the election or re-election, by the Board of Aldermen, of three of the five School Board members who would be participating in the vote to employ the Alderman.

It is assumed that in the event the applicant is elected to this position, he would recuse himself from voting on any future issues to come before the Mayor and Board of Aldermen involving the School District during his tenure as an Alderman.

The School Board meets June 10, 1996 and, due to the urgency of this matter, it would be appreciated if the Ethics Commission could give the School District an expedited opinion on this issue.

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

As stated in Advisory Opinion No. 95-135-E and its attachments, a member of the governing board of a governmental entity, in this case an alderman of a municipality, may be employed by the school district of the governmental entity without violating Constitutional Section 109 and Code Section 254-105(2), both cited above, as long as the school district's tax levy approved by the governing board of the governmental entity is limited to the mandatory amount requested by the school district.

However, the existence of contracts between the school district and the municipality, especially an interlocal agreement, such as those described in the attached opinions, would result in the alderman being in violation of Constitutional Section 109 and Code Section 25-4-105(2). The board member would hold inherent interest in the contracts with the school district authorized by the board of aldermen during his term or for one (1) year thereafter.

The prior appointments of the school board trustees by the alderman's board during his term will not result in a violation of Constitutional Section 109 and Code Section 25-4-105(2) if the alderman is employed by the school board as there are no contracts authorized by the alderman's board. The State Supreme Court in Johnston v. Reeves & Co., 72 So. 925 (Miss. 1916), held that if a position is a public office it is not held by contract. The Court, in Johnston, stated, "It may be stated that an office is not a contract, and that the incumbent has no vested interest in the term, fees, or emoluments thereof." Clearly, a school board trustee's position is a public office.

The requestor is advised 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.

Notwithstanding the above, the requestor is cautioned to advise the alderman to remain keenly aware of Code Section 25-4-105(1), cited above, should the existing circumstances allow him to continue his employment with the school district without violating Constitutional Section 109 and Code Section 25-4-105(2).

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 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.

In this instance, the alderman upon taking office should recuse himself from all matters coming before the board of supervisors that concern his school district employer. This is especially true in regard to the future appointments of school district trustees.

In regard to the past appointments of the three school district trustees during the alderman's term of office, his involvement in their appointment also could result in a violation of Code Section 25-4-105(1). A violation would occur if the alderman used his official position to obtain any one of the three trustees' support for any future position with the school district such as the one for which he is now under consideration. Whether or not a violation did occur would require a determination of facts and circumstances during an investigation and ultimately a decision by a court of competent jurisdiction.

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.

Clearly, the alderman's employment by the school district when he was involved in the appointment of three of the school district's present trustees and his continued service as an alderman should he be employed by the school district would create suspicion among the public and reflect unfavorably upon the school district and the municipality.
 

Ronald E. Crowe Executive Director