This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on June 3, 2005, basing its approval solely on the facts and circumstances stated herein.
 

May the father of an alderman-elect be appointed by the board of aldermen to a housing authority board before his son assumes the office of alderman?

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 25-4-103(g)(ii), (h), (l), (p) and (q) state:
 

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

(ii) Municipalities.

(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.
 

The Mayor and Board of Aldermen of the City of ..., Mississippi, and the ... Housing Authority request an official opinion from you concerning the following:

The Board of Aldermen appoints members to the ... Housing Authority. One of its existing members has recently resigned. The Authority Board desires to appoint a person who is the father of a citizen of [the city] and who has recently been elected to the position of Alderman at large. He will take office on July 1. Can the existing Board go ahead and appoint the father of the newly elected Alderman prior to the commencement of his first term.

Secondly, the Housing Authority desires to enter into a contract with the City for purposes of providing additional police protection to the housing project property. Can the new city Board of Aldermen whose term begins July 1, 2005, enter into such contract with the Housing Authority Board.

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

No violation of the Ethics in Government Laws will arise if the father of an alderman-elect is appointed to the housing authority board before his son assumes the office of alderman. Nor will the Ethics in Government Laws prevent the board of aldermen and the housing authority board from contracting for additional police protection as described above, assuming neither the alderman-elect nor his father have any financial interest in that contract.

However, if the father will be compensated for serving on the housing authority board, the son would be prohibited from participating in any future action by the board of aldermen which would result in a monetary benefit to the father, such as reappointment or approving the pay or benefits of the housing authority board. Section 25-4-105(1), Miss. Code of 1972, quoted above, prohibits a public servant from
taking any action in his or her government position which would create a pecuniary benefit for his or her parent, spouse or child. To avoid violating Section 25-4-105(1), the alderman would be obligated to recuse himself from any matter which would provide a pecuniary benefit to his father.

A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during official meetings or deliberations, but also avoid discussing the subject matter with staff or any other person. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means. An abstention is considered a vote with the majority and is not a recusal. Furthermore, the minutes of the meeting should state the recusing member left the room before the matter came before the public body and did not return until after the vote.
 

Scott Rankin
Executive Director