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 12, 1999, basing its approval solely on the facts and circumstances stated herein.

May a member of a city council participate in matters before the city council involving the municipal school district when the city council member is an employee of the municipal school district?

Your opinion request to the Office of the Attorney General dated January 26, 1999, was referred by that Office to the Mississippi Ethics Commission on February 5, 1999, as your request involves the above issue that concerns the Mississippi conflict of interest laws.

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:

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 (g)(ii)(iii), (h), (l) and (p)(i)(ii)(iii) states:

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

(ii) Municipalities; and

(iii) All school districts.

(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."

Code Section 25-4-105 (1) 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."

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

Question: Can a person, who is a member of a local city council, and who is also employed by the local school system be allow to vote on matters related to the school system.

The Commission formally adopts Advisory Opinion No. 98-013-E 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.

Code Section 25-4-101 and Code Section 25-4-105 (1), both cited above, raise potential problems for a municipal council member who is employed by the municipal school district. As set forth in the attached advisory opinion, one such potential problem is the appointment of the municipal school district's trustees.

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, a municipal council member voting on or participating in discretionary matters before the city council concerning the municipal school district when the municipal council member is employed by the municipal school district can be expected to raise suspicion among the public and reflect unfavorably upon the municipality and the municipal school district.

Code Section 25-4-105 (1) prohibits a municipal council member from using his position to obtain a pecuniary benefit for himself or herself.

A municipal council member's vote or participation in a city council action that is discretionary in nature and that concerns the municipal school district certainly has the potential of violating Code Section 25-4-105 (1) when the municipal council member is an employee of the municipal school district.

Therefore, a municipal council member, who is an employee of the municipal school district, is always advised to totally and completely recuse himself or herself from discretionary matters involving the municipal school district in order to comply with the public policy set forth in Code Section 25-4-101 and to be certain to avoid a 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.

Additionally, a municipal board member's recusing himself from a non-discretionary matter involving the school district that employs him is always strongly recommended because it avoids even the appearance of impropriety.
 
 
 
 
 
 

Ronald E. Crowe

Executive Director