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 5, 2004, basing its approval solely on the facts and circumstances stated herein.

 
May an alderman become an employee of the municipal school district located within the city the alderman serves?

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(f)(i)(ii), (g)(ii)(iii), (h), (l) and (p)(i)(ii)(iii) 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) ‘Government’ 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) 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.
 

Per our conversation, you request that I put in writing my request for an opinion concerning employment with a City Separate School District.  I am an Alderman in the City seeking possible employment within the City Separate School District.  I am requesting an opinion on whether it would be a conflict of interest being that I am an elected official (who appoints three of five members to the City school board) either to be employed or seeking employment within the governing district?

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.

Since the Legislature’s passage of the Uniform School Law of 1986, there is no absolute prohibition to a school employee serving on the board of the levying authority of a school district as the levying authority for school purposes is now a mandatory action and not a discretionary one.  In Frazier v. State, 504 So. 2d at pg. 701 (1987), the Mississippi Supreme Court addressed this specific issue. The Court said, “We cannot envision penalizing a member of a public board for voting affirmatively on a matter in which a court decree or statute gave him no choice but to vote precisely as he did. In such instance, while his vote may be necessary to put into effect some official process, it is ministerial.  Nor can we envision § 109 penalizing any individual for being on a board faced with such matter. Any evil envisioned by the authors of § 109 would have to come from a board member voting on a matter in which he had discretion to vote yes or no.” [See Frazier, at pg. 701.] [Emphasis added to bold text]
 
Based on the above, it is not as such a violation of the conflict of interest laws for an alderman to simultaneously be employed by the municipal school district located within the city the alderman serves. This finding is also based on the school district and the city being separate governmental entities as defined in the above cited Code Section 25-4-103(g)(i)(ii) and (h).

Notwithstanding the above, Code Section 25-4-105(1) and Code Section 25-4-101, both cited above, raise potential problems for an alderman who is employed by the municipal school district.

Code Section 25-4-105(1) prohibits an alderman from using his or her official position to obtain a pecuniary benefit for himself or herself.

Code Section 25-4-103(l), cited above, defines a pecuniary benefit as a “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.”

Therefore, the requestor is advised that as a municipal school employee the only way he or she can be certain to avoid violating Code Section 25-4-105(1) is to recuse himself or herself from all matters coming before the board of aldermen that concern his or her municipal school district employer should he or she be employed by the municipal school district.

As an example, one such potential problem is the appointment of a municipal school district’s trustees. While it is not an automatic or absolute violation for an alderman to vote on an appointment to the municipal school board while he or she is employed by the school district, the Commission has always advised municipal board members that a total and complete recusal is the only sure way to avoid a violation of Code Section 25-4-105(1). Stated another way, an alderman is liable for civil damages when he or she votes or participates on the appointment of a municipal school board trustee only when the appointment of the municipal school board trustee results in a pecuniary benefit to the alderman employed by the municipal school district. The pecuniary benefit may occur at the time of the appointment or at a later date. Therefore, it is the Commission’s opinion that an alderman’s vote and/or participation in the board of aldermen’s action to appoint a municipal school board trustee has the potential of violating Code Section 25-4-105(1) when the alderman is employed by the municipal school district.  A violation of Code Section 25-4-105(1) rests upon a determination of fact as to whether or not the vote and/or participation by the alderman results in a “pecuniary benefit” to himself or herself.

An alderman may totally and completely recuse himself or herself from the consideration and vote concerning the appointment of a municipal school board trustee, or other municipal school related matters, and thereby totally avoid any future violation of Code Section 25-4-105(1) even though he or she obtains a pecuniary benefit through or as a result of the appointment or other action.

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. 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 board of aldermen should state the alderman left the meeting by showing him or her absent for that matter.

The issue presented by the requestors also must be viewed as it relates to Code Section 25-4-101, set forth 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, an alderman’s participation and vote on municipal school related matters, especially in the selection of a municipal school board trustee, when the alderman is an employee of the municipal school district is a circumstance that has the potential of creating suspicion among the public and reflecting unfavorably upon the city and the municipal school district.

It is this Commission’s recommendation that an alderman totally and completely recuse on the consideration and vote concerning municipal school related matters, especially the appointment of a municipal school board trustee, when he or she is employed by the municipal school district. Such a total and complete recusal, as described above, fully complies with the public policy mandate set forth in Code Section 25-4-101.

In addition to the above, the requestor is advised that a circumstance can exist that would cause a violation of Constitutional Section 109 and Code Section 25-4-105(2), both cited above, should a board member of one governmental entity be employed by a separate governmental entity.

Such a circumstance involves the existence of contracts between the two governmental entities in which the public servant would have an inherent interest and/or would receive a personal or pecuniary benefit.

Constitutional Section 109 and Code Section 25-4-105(2) would prohibit an alderman from directly or indirectly having an inherent interest and/or receiving a personal or pecuniary benefit from his or her city or his or her municipal school district employer as a result of any contracts existing between the two governmental entities.

The requestor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and 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.
 
 

Scott Rankin
Executive Director