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 November 4, 1994.

Are the Mississippi Ethics in Government laws violated should the municipal governing authority select as its depository a bank employing as a teller a council member's spouse?

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

Constitutional Section 109 provides:

"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 25-4-105 (2), (3) (a) and (4) (a) provides:

(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.

Advisory Opinion No. 94-132-E
November 4, 1994
Page 2

(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 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:

(a) May be an officer or stockholder of banks or savings and loan associations or other such financial institutions bidding for bonds, notes or other evidences of debt or for the privilege of keeping as depositories the public funds of a governmental entity thereof or the editor or employee of any newspaper in which legal notices are required to be published in respect to the publication of said legal notices."

As attorney for the City, I have been requested to ask your office for an advisory opinion with regard to a situation which exists in the City.

The spouse of a member of the City Council is employed by a local bank as a teller. She has been employed there for more than 15 years. As a teller, she has no input into or influence over the business decisions made by the bank.

Each year the City selects a bank as the City's depository for its funds. The City Council follows the proper statutory bid procedures and selects its depository bank pursuant to the lowest and best bid received pursuant to notice.

Would the fact that a City Councilman's spouse is employed by a bank which is otherwise eligible to bid to be designated as the depository of City funds violate the conflict of interest statutes (Sections 25- 4-101, et seq., Mississippi Code Annotated, 1972 and Mississippi Constitutional Section 109)?

If, in the opinion of your office, such a factual situation is violative of those requirements, what is the solution for the City? Assuming that neither the Councilman nor his wife resigns from their position, would a new depository have to be selected, or would it be sufficient to have the Council member not participate in the decision to select the depository?

    Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is the selection by the municipal council of a depository employing as a teller a council member's spouse violates Constitutional Section 109 and Code Section 25-4-105 (2).

    It is noted that Code Section 25-4-105 (4) (a), when supported by necessary and required facts, serves as an exception to Code Section 25-4-105 (3) (a). Both of these Code Sections are cited herein. However, Code Section 25-4-105 (4) (a), does not constitute an exception to the above cited Constitutional Section 109 and Code Section 25-4-105 (2).

    The Commission has consistently held that neither a recusal nor an abstention prevents a potential violation of Constitutional Section 109 or Code Section 25-4-105 (2). While a vote may be removed, the prohibited interest in a contract authorized by the municipal board remains.

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