This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on March 7, 1997, basing its approval solely on the facts and circumstances stated herein.
May an individual's company continue to do business with the city separate school district if he is elected to the position of alderman for the city in which the school district is located?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:
Constitutional Section 109 states:
"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 25-4-103 (c), (d), (f)(i)(ii), (g)(i)(ii)(iii)(iv)(v), (h), (1) and (p)(i)(ii)(iii) states:
"(c) 'Business' means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a nonprofit corporation or other such entity, association or organization receiving public funds.(d) 'Business with which he is associated' means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.
(f) 'Contract' means:
(i) Any agreement to which the government is a party; or(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:(ii) Any agreement on behalf of the government which involves the payment of public funds.
(i) Counties;(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.(ii) Municipalities;
(iii) All school districts;
(iv) All courts; 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 funds.
(p) 'Public servant' means:
(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
Code Section 25-4-105 (1) and (2) states:(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."
"(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."Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
Should the individual in question be elected to position of Alderman for the City, will he also be able to continue to do business with the City Separate School District (signs, stationary, etc.) since that individual would be appointing School Board members and other activity to come before the Board which may concern the school system.Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
An alderman would not be prohibited from contracting with a governmental entity other than the city which he or she serves. Therefore, an alderman or the alderman's business may contract with the city school district since it is a separate governmental entity from the city.
Notwithstanding the above, an alderman and/or an alderman's company would be prohibited by Constitutional Section 109 and Code Section 25-4-105 (2), cited above, from contracting with the city he or she serves and from contracting with any entity, public or private, if such contract is authorized or funded, in whole or in part, by the city he or she serves.
The requestor is cautioned to advise the individual that a recusal or an abstention will not prevent a violation of Constitutional Section 109 or Code Section 25-4-105 (2). Even without a board member's vote, the authorization by the member's board nonetheless results in a contract in which the board member has a prohibited interest.
An alderman is prohibited from having an interest in contracts authorized by his or her city during his or her term or for one (1) year after the expiration of such term.
Code Section 25-4-105 (1), cited above, 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.
In order to avoid violating Code Section 25-4-105 (1), the individual, if elected, should recuse himself or herself from all matters coming before the board of aldermen concerning the city school district, especially the appointments of school board members, if the individual's company is doing business with the city school district.