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 October 7, 1994.

Are the Mississippi Ethics in Government laws violated as a result of a municipal councilperson being employed:

1. as a teacher in the municipal school system; and

2. by a housing facility operated by the local housing authority?

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

The Mayor of the City has requested that I seek an advisory opinion concerning a possible ethics question involving two city councilmen.

Councilperson A is an employee of the Municipal School System in the capacity of a classroom teacher. She also represents one of the wards as a council person in the City. This individual votes on the municipal school budget. In light of her capacity of a school teacher and as a member of the City Council together with the casting of a vote, does this present a conflict of interest?
 
 

Councilperson B is an employee of a Housing Facility operated by the local housing authority. Does her vote concerning housing authority issues conflict with her employment with a housing authority managed facility?

    1. the local housing authority receives no funding from the municipality;

    2. the local housing authority's budget is not approved by the municipality;

    3. the local housing authority's board members are appointed by the municipal governing authority;

    4. the housing facility employing the councilperson is not a governmental entity but does receive some subsidies from the local housing authority; and

    5. the councilperson is not an employee of the local housing authority.

    The pertinent conflict of interest laws to be consider here are:

Code Section 25-4-105 (1), (2) , (3) (a), and (4) (h) stating:

"(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.

(3) No public servant shall:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, other than in his contract of employment, or have a material

Advisory Opinion No. 94-110-E
October 7, 1994
Page 3

financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee."

    In addition, the Commission refers you to Frazier v. State , 504 So.2d 675 (Miss. 1987), page 700, where the Supreme Court states, "we hold that where a portion of the salaries derived by public school teachers under their teaching contracts comes from discretionary local tax levies, a teacher cannot make a valid contract with a school district while he is on the board of the governing authority which makes such tax levies, or within one year after his term on the governing board expires, such a contract violates Section 109."

    Based on the above cited laws and presented facts regarding question no. 1, the Commission's opinion is that a municipal councilperson being employed as a teacher in the municipal school system is not a violation of the Mississippi Ethics in Government laws as long as the statutory authority to set the dollar amount of the school district's local funding remains with the school board and the municipal governing authority's levying function remains solely ministerial.

    Regarding question no. 2 above, it is the Commission's findings based on the facts the requestor provided that:

    1. the councilperson' 5 employment contract with the housing facility was not authorized by the municipal governing authority; and

    2. the housing facility is not a contractor, subcontractor or vendor with the municipal governing authority.

    Therefore, it is the Commission's opinion that a municipal councilperson being employed by a housing facility operated by the local housing authority is not a violation of the Mississippi Ethics in Government laws.
 
 

Advisory Opinion No. 94-110-E
October 7, 1994
Page 4

    Notwithstanding the above, each councilperson is cautioned not to use their positions for pecuniary benefit in violation of Code Section 25-4-105 (1). All actions as council members should remain entirely separate and distinct from their respective employment positions with the municipal school district and housing facility.

    A school district and a municipal governing authority can be expected to continuously find they have opposing positions on issues because of their different responsibilities and duties. This circumstance is of great concern to this Commission when considering conflict of interest questions. The concern is certainly not lessened when the dual role being considered is councilperson/teacher in that a teacher must annually be re employed by the school district board.

    Therefore, this Commission is of the opinion a municipal council member has an inherent pecuniary interest in school district related matters coming before the municipal council when he or she is also employed as a teacher. Further, the councilperson/teacher cannot avoid violations of Code Section 25- 4-105(1) without fully recusing himself or herself from all discussions and votes concerning the municipal school district including approval of school board member appointments, coming before the municipal council.

    Although there is not so direct a correlation between the interests of a housing facility and a municipality as there is between a school district and a municipality, the councilperson/housing facility employee should nevertheless recuse himself or herself from voting on all actions concerning the housing facility coming before the municipal council so that any appearance of impropriety will be avoided.

    A proper recusal would occur when the council member totally removes himself or herself from the pertinent matter by not officially or unofficially taking part in any discussions or actions regarding the subject matter and leaving the room or area where such discussions, considerations and/or actions take place. The minutes of the municipal board should state that the council member left the meeting by showing him or her absent for that
matter.

                                                        Ronald E. Crowe
                                                        Executive Director

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