Towner v. Moore ex rel. Quitman County School Dist.
| Citation | 604 So.2d 1093 |
| Decision Date | 22 July 1992 |
| Docket Number | No. 90-CC-0875,90-CC-0875 |
| Parties | 77 Ed. Law Rep. 1056 Ezra TOWNER, Jr. and Mary Alice Towner v. Attorney General Michael C. MOORE ex rel. QUITMAN COUNTY SCHOOL DISTRICT and Mississippi Ethics Commission. |
| Court | United States State Supreme Court of Mississippi |
Everett T. Sanders, Natchez, for appellants.
Michael C. Moore, Atty. Gen., Larry E. Clark, Asst. Atty. Gen., Jackson, for appellee.
En Banc.
I.
Today's appellants are husband and wife and simultaneously served, respectively, as a public school board member and schoolteacher, after this Court had said this gave the board member an interest in the teaching contract offensive to our constitution. The Circuit Court found the violation and ordered the board member fined and removed from office, the teacher and the board member jointly to give restitution for the salary illegally received.
We affirm.
II.
Mary Alice Towner and Ezra Towner, Jr., are husband and wife and reside at Route 1, Box 7, Marks, Quitman County, Mississippi. They were the Defendants below and are the Appellants here.
On March 16, 1988, this Court held Miss. Const. Art. 4, Sec. 109 (1890), proscribed an employment contract wherein a public school board employed one whose spouse was a member of the board. On August 3, 1988, we denied rehearing in relevant part. Smith v. Dorsey, 530 So.2d 5 (Miss.1988) (Smith I). 1 These dates are important, as will presently appear.
On March 21, 1988, Mary Towner was a duly elected and serving member of the Quitman County Board of Education. On that date, the board voted to employ her husband, Ezra Towner, Jr., as a special education teacher at Quitman County High Word of our original Smith decision apparently reached Quitman County shortly after it was announced. On April 20, 1988, the school board's attorney addressed a memorandum to all board members, including Mary Towner, describing Smith and stating in part:
School. Board minutes reflect four affirmative votes and then recite "Those absent and not voting: Mary Alice Towner." On August 1, 1988, Ezra Towner signed his employment contract for the 1988-89 school year
There are several board members of the Quitman County School District who have spouses teaching in the system. As such, the Quitman County School District, according to the decision rendered in Smith, supra cannot pay the salaries of the spouses of those Board members so long as those Board members remain Board members. Otherwise, the Board must declare the spouses' contracts null and void. In light of the above, I strongly urge those Board members affected to take immediate action to rectify this situation.
Notwithstanding this notice, Ezra Towner, Jr., signed his employment contract on August 1, 1988, for the school year beginning August 23, 1988, and ending June 2, 1989, and, indeed, taught for that entire year and received a salary of $23,791.00 therefor.
The next year the board did it again. On March 21, 1989, while Mary Towner was still a member, the board voted to rehire Ezra Towner, Jr., as special education teacher for the 1989-90 school year. Board minutes reflect that three board members voted affirmatively. The vote of Mary Towner is not recorded, nor, for that matter, is it clear from the minutes she was present. Two months later the Board voted to hire Ezra Towner, Jr., as a teacher, with Mary Towner again not participating. In any event, on July 21, 1989, Ezra Towner, Jr., signed his contract for the school year August 21, 1989, to June 1, 1990, for a stipulated salary of $25,550.00.
On August 4, 1989, Attorney General Michael C. Moore and the Mississippi Ethics Commission (hereinafter jointly "Plaintiffs") commenced the present civil action by filing their complaint in the Circuit Court of Quitman County, Mississippi. Attorney General Moore proceeded on behalf of the Quitman County School District, see Miss.Code Ann. Sec. 25-4-113 (Supp.1989). The Mississippi Ethics Commission is an agency of the state, created by act of the Legislature, Miss. Code Ann. Sec. 25-4-5 (Supp.1989), and acted pursuant to its duty to enforce laws prohibiting conflicts of interest. Miss. Code Ann. Sec. 25-4-107(1) (Supp.1989). The complaint charged that the above-described contracts were void under Miss. Const. Art. 4, Sec. 109 (1890) and Miss. Code Ann. Sec. 25-4-105(2) (Supp.1989), and demanded (1) forfeiture of all sums paid to Ezra Towner under his contracts of employment, Sec. 25-4-113, supra; (2) the removal of Mary Towner from the school board, Miss. Code Ann. Sec. 25-4-109(1) (Supp.1989); and (3) imposition of a civil fine against Mary Towner, Sec. 25-4-109(1), supra.
In due course, the Towners answered and admitted the essential factual charges of the complaint, specifically including the description of the contracts noted above and the payments thereunder, save only they advised that, effective September 1, 1989, Ezra Towner, Jr., had resigned his position as a schoolteacher for the 1989-90 school year and had received no salary under his contract for that year. The Towners added, "that the defendant, Mary A. Towner, is prepared to resign her position as chairperson of the Quitman County School District Board."
On March 23, 1990, Plaintiffs filed an amended complaint without changing the material factual allegations noted above, and on April 25, 1990, the Towners answered and again admitted the relevant facts regarding board membership, teaching contracts, and compensation.
On October 25, 1989, Plaintiffs served upon the Towners requests for admissions, once more itemizing the essential details regarding their board memberships, the teaching contracts, and payments thereunder.
The Towners never responded or in any way denied or even acknowledged these requests.
On April 9, 1990, Plaintiffs moved for summary judgment. They supported their motion by affidavit detailing the essential facts the Towners had theretofore effectively admitted. The Circuit Court gave the Towners full opportunity for response and a hearing thereon, and on July 9, 1990, granted the motion and entered judgment. The Court found the Ezra Towner, Jr., contract for the year 1988-89 unlawful under Section 109 of the Constitution and statutory Section 25-4-105(2). The Court invoked Section 25-4-109(1) and ordered Mary Towner fined in the amount of $2,000.00 and removed from office as a member of the school board, effective immediately. The Court further ordered that Ezra Towner, Jr., and Mary Towner, jointly and severally, repay to the Quitman County School District $23,791.00, being the salary Ezra Towner received for the 1988-89 school year, and entered judgment thereon in that amount plus interest at the legal rate.
This appeal has followed.
III.
The increasingly familiar Section 109 of this state's constitution reads, in relevant part,
No public officer ... shall be interested, directly or indirectly, in any contract with ... any district [or] county, ..., thereof, authorized by any ... 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.
Though it be self-executing, see Mississippi Ethics Commission v. Aseme, 583 So.2d 955, 958 (Miss.1991), quoting Frazier v. State ex rel. Pittman, 504 So.2d 675, 694 (Miss.1987), Section 109 is not beyond elaboration, legislative or judicial varieties. The legislature has acted and has enacted Miss. Code Ann. Sec. 25-4-105 (Supp.1988), which reads, in relevant part:
(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.
Smith I arose in Claiborne County. There, four persons who were members of the county board of education had spouses who were simultaneously under contract/paid employees of the school district. Addressing Section 109 only, Smith I upheld a lower court decision "declaring the contracts of appellants' spouses to be null and void." Smith I, 530 So.2d at 9. We take the law as settled. Section 25-4-105(2) only reinforces the point.
IV.
The Towners press a plethora of procedural points pursuing reversal. They argue that claims made under Sections 25-4-109 2 and 25-4-113 3 are separate and distinct claims which cannot be joined in one action because they require different Undaunted, the Towners argue that actions for violation of Section 25-4-105 can only be initiated by the Mississippi Ethics Commission or the district attorney as provided in Section 25-4-107, while actions for damages brought under Section 25-4-113 can only be brought by the attorney general or the governmental entity directly injured. But this is what has been done. And Rules 18(a) and 20(a) permit the joinder. The several claims ask jointly for relief, arise out of the same transaction or occurrence, and present on their face common questions of both law and fact. That there are different evidentiary standards for the imposition of a civil fine or removal from office under Section 25-4-109 and the recovery of monetary damages or forfeiture of pecuniary benefits under Section 25-4-113 does not make the case cumbersome and confusing for a judge or jury. But if they did, the Court had full severance authority. Rule 42(b), Miss.R.Civ.P. Where the defendant is afforded a trial by jury, these matters can be handled judiciously by proper instructions to the fact finder. See Vogel v. American Warranty Home Service Corp., 695 F.2d 877, 882 (5th Cir.1983). Where, as here, there are no genuine issues of material fact and thus no necessity for a trial by jury, we are not concerned with the burden of proof because there are no issues to be tried.
burdens of proof, i.e.,...
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