This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 12, 1996, basing its approval solely on the facts and circumstances stated herein.
May a university employ the spouse of the principal investigator on a research project as the research associate for the research project?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:
"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(g)(v), (h), (1), (m), (p)(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:
(v) Any department, agency, board, commission, institution, instrumentality,
or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.
(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.
(m) 'Person' means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.
(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."
"(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."Pertinent facts and circumstances in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of this opinion.
Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
Code Section 25-4-105(1) and (5), cited above, addresses the prohibitions that are relevant to the facts and circumstances presented by the requestor.
Code Section 25-4-105(1) prohibits the principal investigator from taking any action related to his university position that would aid his spouse in obtaining the research associate position and future benefits related to the position.
Code Section 25-4-105(5) prohibits the principal investigator from using non-public information that he obtained through his university position that could provide a pecuniary benefit to his spouse.
The office provisions set out in the requestor's letter seem sufficient to allow the principal investigator to avoid a violation of Code Section 25-4-105(1). However, he may not indirectly promote the employment or future benefit increases of his spouse. His opinion or recommendation may not be sought or considered in the employment process or in future compensation decisions concerning his spouse.
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.
This Commission has consistently opined that when an individual is employed by a public entity and assigned to work under the supervisor of a relative, especially a spouse, there is the potential of creating suspicion among the public and reflecting unfavorably upon the public entity.
Ronald E. Crowe Executive Director