Mississippi Advisory Opinions November 07, 1988: 19881107 (November 07, 1988)

Advisory Opinion Text

Mr. Charles M. George

Superintendent

West Tallahatchie School District

P.O. Box 129

Webb, Mississippi 38966

Mr. Ronald E. Crowe

Executive Director

Mississippi Ethics Commission

P.O. Box 22746

Jackson, Mississippi 39225

Re: Advisory Opinion No. 88–156–E

Dear Mr. George:

During its meeting on November 4, 1988, the Mississippi Ethics Commission considered your advisry opinion request concerning Mr. Robert Clark. Your request is attached hereto as an official part of this opinion.

The conflict of interest provisions interpreted by the Commission are Section 25–4–101, et seq., 1972 Miss.Code Annotated and Article IV, Section 109, Mississippi Constitution of 1890 . Please note the following parts:

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 25–4–103(j) states:

“(j) ‘Material financial interest’ means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either indvidually or in combination with each other. Notwithstanding the foregoing, ownership of any interest of less than ten percent (10%) in a business or aggregate annual income of less than one thousand dollars ($1, 000.00) from a business shall be deem not be a material financial interest in such business.”

Code Section 25–4–105(1), (2)(a) and (2)(f) state:

“(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:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member.

(f) 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.”

You did not state within your letter the amount of salary Mr. Clark receives as an employee of the company. Therefore, the Commission assumes that he earns in excess of $1, 000 annually.

Based solely on the facts and circumstances contained herein, the Commission concluded that any sales of goods or services by Mr. Clark's employer to the West Tallahatchie School District would cause Mr. Clark to violate Constitutional Section 109 and Code Section 25–4–105(2)(a) and (2)(f) .

Mr. Clark as an employee of the store has a “material financial interest” in the company pursuant to Code Section 25–4–103(j) . His “material financial interest” in the company constitutes an interest in any contract between the company and the board of which he is a member. The legal authorization of such contracts lies with the board. Therefore, Mr. Clark would possess a prohibited interest in a contract with his board and authorized by his board.

Also, if Mr. Clark participated in any positive manner in any board action allowing the district to do buisness with his company, such participation would constitute a violation of 25–4–105(1).

If I or the Commission can assist you further, please do not hesitate to contact me.

Sincerely yours, Ronald E. Crowe Executive Director

ATTACHMENT

Dear Mr. Crowe:

Pursuant to a request by the Board of Trustees, West Tallahatchie Consolidated School District, P.O. Box 129, Webb, Mississippi, 38966, I request that your office make a ruling of whether or not there is a conflict of interest as it pertains to Robert Clark, member of the Board of Trustees, West Tallahatchie Consolidated School District.

Mr. Clark has served as a member of the Board of Trustees for a number of years. Presently, he serves as Chairman and has qualified to run as a candidate for a full five (5) year term during the general election on November 8, 1988. His present term expires December 31, 1988. Further, Mr. Clark is employed by Western Auto, Inc. which is owned and operated by Mr. H.D. Maxwell and Sons.

The schools in the district, including this office, have always done some business with the store. All business transactions were undertaken because of either warranty and service availability, cost factors, and availability of items. Mr. Clark's position on the Board has not influenced any purchase nor has the Western Auto given any special consideration or special price reductions. Mr. Clark's interest has been to serve the needs of the students and parents of this district. His interest can also be said to be genuine because he is a graduate of the schools in this district. Furthermore, his children, grandchildren, brothers and sisters are also graduates or are now attending schools in this district.

Mr. Clark's function as a member of the Board has been one of unselfish service to all communities within the District.

The Board intends to comply with the ruling of the Commission. Therefore, a reply at your earliest convenience is greatly appreciated.

Sincerely yours, Charles M. George, Superintendent.