This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 3, 1996, basing its approval solely on the facts and circumstances stated herein.

May an individual serving on a municipal separate school board and on a municipal election commission avoid violating the state conflict of interest laws by recusing himself from any action coming before the municipal election commission regarding a school bond issue election?

    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:

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 25-4-105(5) states:

"(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."

    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 appoints members to the City Election Commission and to the City Municipal Separate School District Board. At this time we have one member who is serving on both boards and we have a school bond election coming up next month. Could you please tell me if this creates a problem and if so what steps should be taken to remedy the situation.

The individual mentioned above has stated that he will recuse himself from the City Election Commission during any and all school related election issues prior and immediately after the election.

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

    The requestor is cautioned to advise the individual serving as a municipal separate school board member and as a municipal election commissioner to be keenly aware of the above cited Code Sections 25-4-101 and 25-4-105(5).

    Code Section 25-4-101 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, an individual simultaneously serving as a school board member and an election commissioner for the same municipality where a school bond election is to be held has the potential of creating suspicion among the public and reflecting unfavorably upon the municipality, the municipal separate school district and the municipal election commission.

    Code Section 25-4-105(5) prohibits a public servant from using or disclosing information obtained through his or her official position that could result in a pecuniary benefit for the public servant, any relative or any other person. A "person" as defined in Code Section 25-4-103(m), cited above, would include a public school district.

    In order to promote the public trust as set forth in Code Section 25-4-101 and to avoid violating Code Section 25-4-105(5), the public servant serving on the municipal separate school board and the municipal election commission should consider totally and completely recusing himself from any actions by the municipal election commission concerning the school bond issue election. 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 school bond issue election matter during the official meeting[s], but also avoid discussing it with other election commissioner, staff or any other person involved in the election prior to and after the official meeting[s]. 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.
 
 

Ronald F. Crowe Executive Director