This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on January 9, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May the spouse of a  superintendent of education-elect remain employed with the school district as a school teacher or be employed as Title I Director, a non-instructional position, after the newly elected superintendent takes office?

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

“(f) ‘Contract’ means:
 
(i) Any agreement to which the government is a party; or

(ii) Any agreement on behalf of the government which involves the payment of public funds.

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

(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.

(q) ‘Relative’ means the spouse, child or parent.”

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.
 

I am a board member in the County School District.  I spoke with Mr. Hood from your office, and was advised to request an official opinion on an employment matter in our district, involving our superintendent of education and his wife.

An individual was recently elected as the new superintendent of education for the County School District.  Prior to election, the superintendent was principal at the high school.  His wife is a teacher at Elementary School, also in our district.  Prior to this school year, she served as the Title Director and reported to the out-going superintendent.  Before the superintendent’s spouse was assigned to that position, it was held by an individual and his title was that of Assistant to the Superintendent.  He was assigned to the position of principal at the Elementary School, and the superintendent’s wife replaced him at the superintendent’s office (in the same building).  The position was no longer called “assistant superintendent,” but rather, Title I Director.  It has been confirmed; however, that it was the same position previously held by the new principal at the Elementary School.  A short while before the election, the superintendent’s wife requested to be transferred back to the classroom, and she was given the teaching position at the Elementary School, where she is presently assigned.

At our meeting on Monday, the Superintendent addressed the board regarding some of his goals, among which one was his desire to return his wife to the position of Title I Director.  Our district presently has no Assistant Superintendent.  Please be reminded that the position, Title I Director, vacated by the superintendent’s wife, before being renamed, was that of Assistant Superintendent when held previously by others.

To avoid recommending his own wife for that position, the superintendent proposed the option of designation of a principal (or other administrator) to make the recommendation.  He further pointed out that her office would be at the high school rather than at Central Office (superintendent’s office).  I then asked the superintendent to whom his wife would report, and he replied that she would report to HIM.

Please provide an official opinion regarding the ethics and the potential conflict of interest, if applicable, regarding a superintendent’s wife serving in a position in which she handles, controls, or has access to a great deal of money - a position in which her husband is her immediate supervisor.  In your consideration, please address the potential for community concerns and negative publicity about the relationship of the two positions in terms of funding, via federal grants or by other means, to the district.  Does such an appointment cast a dark shadow on us in terms of adequate internal auditing in this area?  What do we, the district say to a community when asked, “Who’s policing the superintendent and his wife, the Title I Director?

In regards to employee relations, please provide an opinion about grievances from other faculty/staff members concerning the superintendent’s wife, if or whenever applicable.  Is it reasonable to expect an employee, who feels that he/she has legitimate concerns or grievances, to expect fair intervention (and not retaliation) from the spouse of the offender?  On another note, regarding evaluations that are required for all certified employees, is it ethical for the superintendent to evaluate his own wife, and is it reasonable to expect others employed by our district to NOT be concerned about bias on the part of the superintendent?  Is it ethical to subject anyone, including the superintendent and his wife to such circumstances?  Does it create an environment conducive to educating the children of the County School District - the reason all of our positions exist?

Please be informed that other members of our school board are aware of this request; however, if my effort is out of order, please forgive me, and advise as how we may handle this situation.

The requestor also attached a written job description from the subject county school district bearing the job title “Assistant Superintendent” and purporting to describe the position contemplated herein. That job description was included in the facts considered in formulating this opinion.

The Commission formally adopts Advisory Opinion No. 03-150-E in response to this request and by attachment incorporates it into this opinion. These two opinions address the same factual scenario presented by two separate requests from the same governmental authority. They should be read together to fully understand the surrounding facts.

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

Code Section 25-4-105(1), cited above, prohibits a public servant, including a superintendent of education, from using his or her official position to obtain a pecuniary benefit for his or her spouse. Therefore, a superintendent of education is prohibited by Code Section 25-4-105(1) from recommending his or her spouse for employment with the school district.

Code Section 37-9-17 requires the superintendent of education to recommend to the school board all instructional and non-instructional employees. However, Code Section 37-9-17 allows a school board to establish a policy, whereby, the board’s designee, in place of the superintendent of education, is authorized to recommend employment of instructional and non-instructional employees to the school board.  As stated by Code Section 37-9-17,  “Any non-instructional employee employed upon the recommendation of a personal supervisor or another principal employed by the local school district must have been employed by the local school district at the time the superintendent was elected or appointed to office; a non-instructional employee employed under this authorization may not be paid compensation in excess of the statewide average compensation for such non-instructional positions with comparable experience, as established by the State Department of Education.”

Therefore, a superintendent of education’s spouse can remain employed and be re-employed by a school board in a non-instructional position, such as a Title 1 Director, if the school board has established a policy to authorize the school board’s designee to recommend the superintendent’s spouse when the superintendent’s spouse was employed by the local school district at the time the superintendent was elected or appointed to office and the spouse is not compensated in excess of the statewide average for such a position.

Notwithstanding the above, a superintendent of education must be certain not to use his or her official position, directly or indirectly, to assist his or her spouse in being employed by or in retaining employment with the school district and in obtaining raises or other benefits.  In order to do this, a superintendent of education must totally and completely recuse himself or herself from the employment and compensation processes.

Based on the requestor’s facts, the superintendent-elect’s request of the Board of Education to name his spouse to an Assistant Superintendent position would result in a violation of Code Section 15-4-105(1).  This is based on an Assistant Superintendent’s pay scale being in excess of that of the spouses’s current position and the fact that an Assistant Superintendent is a direct subordinate of the Superintendent.  Therefore, the Superintendent can be expected to be involved with advising the Board of Education on the quality of work performed by an Assistant Superintendent which will affect the re-employment of the person holding that position.
 
  A total and complete recusal requires that a superintendent of education not only avoid debating, discussing or taking action on the employment of his or her spouse during the official meeting, but also avoid discussing the subject matter with the school board members, board designee, other 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 himself or herself, a superintendent of education must leave the room or area where such discussions, considerations and/or actions take place.  The minutes of the school board should state that the superintendent of education left the meeting by showing him or her absent for the action concerning the employment of his or her spouse.

Therefore, the designee appointed by the school board must remain in place for all actions concerning the superintendent’s spouse receiving raises, promotions, benefits or any other decisions providing a pecuniary benefit, as well as, for the re-employment status set forth in Code Section 37-9-17.

With regard to the requestor’s concerns about the public appearance of impropriety, this situation must be viewed as it relates to Code Section 25-4-101, set forth above.  As stated above, this code section 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 school district’s employment of its superintendent of education’s spouse has the potential of creating suspicion among the public and reflecting unfavorably upon the school district.  To fully comply with the state’s public policy mandate, the superintendent and spouse should avoid circumstances that have the potential of creating suspicion.  Therefore, this is another reason why a total and complete recusal on the part of the superintendent is necessary when a decision or action could in any way affect the spouse’s employment or compensation status.
 
 

Scott Rankin
Executive Director