This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on November 6, 1998, basing its approval solely on the facts and circumstances stated herein.

May the spouse of the executive director of a city's housing authority serve as an alderman for the city?

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 25-4-101 states:

"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 (a), (g)(ii)(v), (h), (l), (p)(i)(ii)(iii) and (q) states:

"(a) 'Authority' means any component unit of a governmental entity.

(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(ii) Municipalities; 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.

(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.

(l) '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.

(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."

Code Section 25-4-105 (1) and (2) 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.

(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.

This letter is to request a formal opinion from the Mississippi Ethics Commission on whether it would be a conflict of interest for my husband to run for Alderman at Large while I am the active Executive Director of the City Housing Authority.

The City Housing Authority does not receive any funding from the City nor does it have any outstanding Bond Issue from the City. The City Housing Authority receives funding through the Department of Housing & Urban Development.

A response is desperately needed, the Special Election is scheduled for December 1, 1998.

The Commission formally adopts Advisory Opinion No. 98-035-E, with attachments, in response to this request and by attachment incorporates it into this opinion.

Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.

As set forth in the attached advisory opinions, it is not as such a violation of the state conflict of interest laws for the mayor or alderman's spouse to be employed by the municipality's housing authority. This is with the understanding that the housing authority receives no funding of any kind or no additional bond issuing authority from the mayor and board of aldermen. Such funding would result in the mayor or alderman having a prohibited interest in the spouse's employment contract with the housing authority in violation of the above cited Constitutional Section 109 and Code Section 25-4-105 (2).

Notwithstanding the above, Code Section 25-4-101 and Code Section 25-4-105 (1), both cited above, raise potential problems for an alderman whose spouse is employed by the municipality's housing authority. One such obvious, potential problem is the appointment of the municipality's housing authority's board members.

Code Section 25-4-101 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.

Clearly, an alderman voting on or participating in matters before the mayor and board of aldermen concerning the appointment of the municipality's housing authority board members when the alderman's spouse is employed by the municipality's housing authority can be expected to raise suspicion among the public and reflect unfavorably upon the municipality and the housing authority.

Code Section 25-4-105 (1) prohibits an alderman from using his or her position to obtain a pecuniary benefit for a relative. A spouse is a relative as defined in the above cited Code Section 25-4-103 (q).

The alderman's vote or participation in mayor and board of aldermen's actions concerning the appointment of the housing authority board members certainly has the potential of violating Code Section 25-4-105 (1).

Therefore, an alderman, whose spouse is an employee of the municipality's housing authority, is advised to totally and completely recuse himself or herself from matters involving the appointment of housing authority members in order to comply with the public policy set forth in Code Section 25-4-101 and to avoid a potential violation of Code Section 25-4-105 (1).

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. An abstention is a vote with the majority of the governing entity's board and therefore does not qualify as a recusal.

Also 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.
 

Ronald E. Crowe
Executive Director