This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on March 1, 1996.

May the city council appoint an individual to the board of trustees of the city school district if the individual's daughter is employed in a supervisory position with the city school district?

    The Mississippi Ethics Commission is restricted 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, Mississippi laws outside the jurisdiction of the Commission and internal rules and regulations of the governmental entity are not addressed by this opinion.

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 25-4-103(f)(i)(ii), (g)(ii)(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 funds.

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

(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.

(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 (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."

    Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.

The City Council appointed a new member to the Board of Trustees for the City Public Schools. Subsequently, it was discovered that the daughter of the new school board member serves the City Public Schools as a supervisor, a position which is Federally funded.

In discussing these circumstances with the newly appointed school board member, I am advised that her daughter is financially independent and free from the school board member's control and support.

My letter to you dated February 22 was based on a preliminary investigation which did not include an interview with the school board member who is the subject of my letter.

I am now advised by the school board member that her daughter who works in the public school system lives with her two children in the school board member's home where she pays utilities, but does not pay rent. Further, the daughter has always lived with her mother, except, I assume, while she attended college.

    The Commission formally adopts Advisory Opinion No. 90-030-E, with attachments, in response to this request and by attachment incorporates it into this opinion.

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

    The city school district's contracting with the child of a school trustee during the school trustee's term or for one year thereafter is prohibited by Constitutional Section 109 and Code Section 25-4-105(2), both cited above, unless the child is totally and completely financially independent from the school trustee.

    In this instance, the requestor has advised that the child and the child's children are living in the school trustee's household. Clearly, the child is not financially independent and free from the school trustee's control and support under their present living arrangement. Therefore under such circumstances, the city school district may not enter into a contract with the child during the school trustee's term and for one (1) year thereafter without the school trustee being in violation of Constitutional Section 109 and Code Section 25-4-105(2).

    In addition to the above, the requestor is cautioned to also advise the school trustee to be keenly aware of the above cited Code Section 25-4-105(1). The school trustee's support and vote on any matter that provides a pecuniary benefit to the child, including approval of the child's employment contract, would be prohibited by 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.

    The requestor is cautioned to advise the school trustee 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 school trustee's vote, the authorization by the school district's board of trustees nonetheless results in a contract in which the school trustee has a prohibited interest.
 
 
 

Ronald E. Crowe Executive Director