OFFICIAL ADVISORY OPINION NO. 96-108-E
May an individual simultaneously serve as a county election commissioner and as a principal of a public school?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 1990. 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:
"(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:
(i) Counties;
(iii) All school districts; and
(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 finds.
(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 finds or which expends, authorizes or recommends the use of public finds; 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) and (5) 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.
(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.
I would like to have an opinion as to whether a person can serve as an election commissioner and as a principal of a middle school. He is paid from both positions.Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
The conflict of interest laws do not as such prohibit an individual from simultaneously serving and being compensated for serving as a county election commissioner and a public school principal. The county election commission is an authority of the general county government. The general county government and a school district are separate governmental entities as defined in the above cited Code Section 25-4-103(g).
Notwithstanding the above, the requestor is advised to caution the individual serving as a county election commissioner and as a public school principal to remain keenly aware of the above cited Code Section 25-4-105(1) and (5).
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.
Therefore, the individual when serving as a county election commissioner would be required to recuse himself from any matter coming before the election commission that involved the public school district employing him. This especially includes an election of the superintendent of education or school board trustees of the school district employing him.
Code Section 25-4-105(5) prohibits a public servant from using non-public information obtained through one's public position that could result in a pecuniary benefit for the public servant or any other person. The definition of "person" as set forth in Code Section 25-4-103(m), cited above, can include a governmental entity such as an election commission or a school district.
Ronald E. Crowe Executive Director