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 someone elected superintendent of education 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.
 

Prior to June 30, 2003, the spouse of a county school superintendent-elect, served as the Title 1 Director of the County School District (District).  At the end of June, 2003, she requested that she be permitted to return to a teaching position in the District, and she is currently a fourth grade teacher in the District.  The Board of Education (Board) of the District never approved a replacement.  Title 1 Director, and, as of this date, that position remains unfilled.  In November of this year her husband was elected superintendent of the District, to take office in January, 2004.

The superintendent would like his wife to again be the Title 1 Director for the District.  He is aware of Miss. Code Ann. Section 25-4-105(2) (Supp.2003), and he is not seeking any increase in her current salary should the Board approve her as the Title 1 Director for the District.  The superintendent is also aware of Miss. Code Ann. Section 37-9-17(l) (Supp.2003).  In light of his desire, I would appreciate your opinion as to the following questions:

1. May the superintendent’s wife serve as the Title I Director for the District under the same salary she currently receives and serve under the supervision of one of the principals of one of the schools in the District?  Under this scenario, if the superintendent’s wife continued in her employment with the District in subsequent years, the superintendent’s wife would remain on the salary schedule adopted by the Board each year (I am advised by the Business Manager that the school counselors are paid on the salary schedule adopted by the Board, although they do receive a supplement as well for their work.  Under this scenario, the superintendent’s wife would not receive any supplement, but would work strictly on the salary schedule.), and would be paid on the basis of her education and experience as any other teacher would.  For example, if she has a masters degree and has 10 years of experience (I do not know of my own knowledge what her education level and years of experience are), she would be paid the same as any other teacher in the District, with a masters degree and 10 years of experience.  The superintendent recognizes that under this scenario the Board would have to “designate a personnel supervisor or another principal employed by the school district to accept” the recommendation of the principal under which the superintendent’s wife worked, and that “personnel supervisor or another principal employed by the school district” would then transmit the superintendent’s wife’s name to the Board for recommended reemployment.  Miss. Code Ann. Section 37-9-17(1) (Supp.2003).

2. Alternatively, may the superintendent’s wife serve as the Title I Director of the District under the same salary as she currently receives and serve as an Assistant Principal of a school in the District, working under the supervision of the principal of the school to which she was assigned?  I am advised by the District’s Business Manager that there is currently no salary schedule for assistant principals in the District (although I suppose one could be adopted should the Board choose to do so).  Naturally, under this scenario, the same requirement of a “personnel supervisor or another principal employed by the school district” as Miss. Code Ann. Section 37-9-17(l) (Supp. 2003) sets out would be required.

I will share your opinion with the Board and will advise them not to take any action on this issue until they receive that opinion.

The Commission formally adopts Advisory Opinion No. 03-148-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 school district. They should be read together to fully understand the surrounding facts.

Notwithstanding the above, the Commission does provide the following responses to the requestor’s specific inquiries set forth in his request letter. These responses are based on information provided by the requestor and the superintendent-elect during telephone conversations with the Commission’s staff, whereby, it was established that the applicability of the following responses are based on the understanding that a Title I Director can be assigned and thereby serve under the supervision of one of the principals of one of the schools in the district.

In regard to the requestor’s first inquiry, the superintendent-elect’s spouse may serve as the Title I Director for the district under the same salary she currently receives if she serves under the supervision of one of the principals of one of the schools in the district and she is recommended each year under the designee provisions set forth in Code Section 37-9-17. Under this scenario, the superintendent-elect can avoid violating Code Section 25-4-105(1), cited above. Again, as stated in the attached advisory opinion, the designee appointed by the school board must remain in place for all actions concerning the superintendent-elect’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.

In regard to the requestor’s second inquiry, the superintendent-elect’s spouse being promoted to an assistant principal position, even though she remains at her current salary for this current school year, is a matter that raises more serious concerns.  As stated in the request letter of Advisory Opinion No. 03-148-E and in the request letter set forth above, it is the superintendent-elect who has asked that his spouse be given the Title I Director position.  If the only way that this can occur is for her to be appointed as an assistant principal, then her future salary scale, when set by the board, can be expected to be greater than that of a teacher. In such an instance, the superintendent-elect can certainly be considered to have violated Code Section 25-4-105(1) if and when his spouse benefits from being paid from an assistant principal’s salary scale.

However, if it is the school board’s discretionary decision as to whether the spouse is paid under a teacher scale or an assistant principal scale, then the response to the first inquiry will apply in this instance as well.
 
In regard to the state public policy mandate set forth in Code Section 25-4-101, cited above, the requestor is advised that the superintendent-elect’s spouse being promoted to an assistant principal position is a circumstance that can be expected to raise suspicion among the public and cause the district to appear in an unfavorable light to the public.  Therefore, the spouse remaining at a pay scale that she is currently at, i.e., a teacher scale, certainly complies more with the public policy mandate set forth in Code Section 25-4-101.
 
 

Scott Rankin
Executive Director