This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on  July 22, 2005, basing its approval solely on the facts and circumstances stated herein.
 

May aldermen who are employees of the municipal separate school district or who have relatives employed by the district vote on appointments to the school board?

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), (p)(i)(ii)(iii) and (q) states:
 

“(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.

(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.
 

My question is which aldermen can or cannot vote and/or participate in the board of aldermen’s action to appoint a municipal school board trustee under the following circumstances.

Alderman #1 is an employee (cafeteria worker) of the school.
Alderman #2 has a spouse that is an employee (secretary) of the school.
Alderman #3 has a spouse that is an employee (teacher) of the school.
Alderman #4 has a son that is an employee (teacher/coach) of the school.
All four of the above aldermen are currently serving office.

The Commission formally adopts Advisory Opinion No. 05-082-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.

The Commission has previously opined that an alderman who votes on the appointment of a school board member will violate Section 25-4-105(1), Miss. Code of 1972, quoted above, only if he or she enters into a quid pro quo agreement which results in a monetary benefit for the alderman or the alderman’s parent, spouse or child. See Ops. Miss. Ethics Commn. No. 04-022-E, 99-026-E, 98-023-E and 98-013-E. For instance, if an alderman agrees to support the appointment of an individual to the school board in exchange for a pay raise for his wife, a school teacher, then that alderman would have violated Section 25-4-105(1). The Commission has also advised public servants so situated to recuse themselves from voting on appointments to the school board to avoid the appearance of impropriety. Id. Pursuant to Section 25-4-101, Miss. Code of 1972, quoted above, public servants should conduct themselves in a manner which enhances the public trust in government and avoid actions which may tend to create public suspicion regarding the honesty and integrity of those in government.

However, this opinion presents a question of first impression. Here, if all four affected aldermen recuse themselves, the board will be unable to make any appointments to the school board. In this instance, the Commission must balance concern for the public trust against the legal duty of the board of aldermen to appoint members of the school board. The public policy codified in Section 25-4-101 must be balanced with the greater public interest. The school district cannot function if the board of aldermen is unable to appoint school trustees. In this case, the aldermen described above must participate in the vote on appointments to the school board to carry out the greater public interest.
 

Scott Rankin
Executive Director