This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on November 1, 1996, basing its approval solely on the facts and circumstances stated herein.
May a brother of an alderman perform contract work for the city where his brother serves as an alderman?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 entity's internal rules and regulations.
The pertinent conflict of interest laws to be considered here are:
"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."
Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.(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.(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.(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."
This letter is written in reference to our previous phone conversation, in which I asked
the question: "Can a relative (brother) of an elected official (alderman) perform contract work for the city?
The Commission formally adopts Advisory Opinions No. 95-107-E, No. 95-071-E, No.95- 043-E and No. 94-045-E in response to this request and by attachment incorporates them into this opinion.
Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
As set forth in Advisory Opinion No. 95-071-E, a municipality's purchasing, or in this instance contracting, with one of its aldermen's brothers or brothers' businesses is not as such prohibited by the Government in Ethics laws, Sections 25-4-101, et seq., 1972 Mississippi Code Annotated, as a brother is not included in the definition of "relative" set forth in the above cited Code Section 25-4-103(q).
However, should there be existing financial interests between the alderman and his brother that result in the alderman having a direct or indirect interest in his brother's contract with the municipality, then the alderman would be in violation of the above cited Constitutional Section 109 and Code Section 25-4-105(2).
The requestor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105(2) because neither removes the prohibited interest in a contract authorized by the alderman's board.
A "relative" in Code Section 25-4-103(q) means "the spouse, child or parent." Therefore, the other attached advisory opinions address when a municipality's contracting with the spouse, child or parent of a mayor or alderman is prohibited by the conflict of interest laws. The requestor is advised to closely review the attached advisory opinions.
The issue presented by the requestor also must be viewed as it relates to Code Section 25-4- 01, 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 alderman is advised to recuse himself from the municipal governing authority's actions concerning his brother's contract to avoid creating suspicion among the public and reflecting unfavorably upon the municipality.
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.
Ronald E. Crowe Executive Director