Before Sullivan, P.j., McRAE And Mills, JJ.
The opinion of the court was delivered by: Mills, Justice
DATE OF JUDGMENT: 04/17/97
TRIAL JUDGE: HON. L. BRELAND HILBURN, JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND REMANDED - 12/17/1998
¶1. The Mississippi Attorney General's Office, on behalf of Hinds Community College and the Mississippi Ethics Commission, filed a complaint in 1996 against Dr. Vernon Clyde Muse, President of Hinds Community College, for statutory violations of the Ethics in Government Act, commonly know as the conflict of interest laws. On October 21, 1996, Muse filed a motion to dismiss. The Circuit Court of the Second Judicial District of Hinds County granted Muse's motion on April 17, 1997, dismissing the complaint with prejudice. Aggrieved, the State brings this appeal assigning the following issues as error:
I. WHETHER THE STATE IS REQUIRED TO PROVE DAMAGES AS A RESULT OF MUSE'S VIOLATION OF STATUTORY CONFLICT OF INTEREST LAW SECTION 25-4-105(1) OF THE MISSISSIPPI CODE ANNOTATED.
II. WHETHER MRS. MUSE'S TEACHING ACCOMPLISHMENTS AND BENEFITS CONFERRED UPON HINDS COMMUNITY COLLEGE ARE RELEVANT IN DETERMINING WHETHER DR. MUSE VIOLATED THE CONFLICT OF INTEREST LAWS.
III. WHETHER THE ISSUE OF THE EXISTENCE OF ETHICS LAW VIOLATIONS IS MOOT.
¶2. Dr. Vernon Clyde Muse has continuously served as president of Hinds Community College since 1978. His wife, Vashti Muse, a former kindergarten teacher, was hired by the college in 1980 as a part-time remedial reading instructor. She obtained a full-time position in 1983 and held this post until she resigned her position in April 1996. She has since continued to teach at the college without pay, indicating her ". . . selfless dedication to her students," according to her counsel's brief. However, Dr. Muse's salary and housing allowance were significantly increased in 1996 by the Hinds Community College Board of Trustees at the same time Vashti made her philanthropic decision to teach voluntarily.
¶3. As required by law, the Board of Trustees for Hinds Community College annually requests Dr. Muse to recommend teachers for the coming school year. Each year from 1983 until 1996, Dr. Muse recommended of his wife. Each year, after the Board of Trustees approved Vashti, Dr. Muse, on behalf of the college, entered into a written contract for one year with her. Over the course of her sixteen year employment at Hinds, Vashti received the compensation specifically provided by statute for a teacher of her educational background and tenure. The State claims that the contracts Dr. Muse entered into with his wife are void and seeks restitution for the amount of compensation Vashti received as a result of the contracts entered into from 1983, the year the conflict of interest statute was passed, until her resignation in 1996. The total amount Vashti received from these contracts was $311,709.00.
¶4. During Vashti's employment the Ethics Commission issued three advisory opinions stating that it was an unlawful conflict of interest in violation of Mississippi Code Annotated § 25-4-105(1) for a community college president to recommend or hire his spouse for employment at the same institution. Further, in November of 1987, Dr. Muse chaired a meeting of the Mississippi Junior College Association at which Ronald E. Crowe, Executive Director of the Mississippi Ethics Commission, spoke and informed the members present that it was a violation of Mississippi conflict of interest laws for the president of a community or junior college to recommend his or her spouse for employment at that institution. Finally, according to the State, the 1996 Mississippi Legislature rejected a Senate bill designed to allow community college boards to designate a third party to recommend a maximum of two teachers per year for employment. This so-called "Muse Amendment" would have created a new exception to the Mississippi conflict of interest laws.
¶5. The State is seeking restitution in the amount of $311,709.00 plus eight percent interest per annum, statutory penalties, removal of Dr. Muse from office, and a civil fine of $5,000.00.
¶6. When reviewing a lower court's decision to grant summary judgment this Court will employ a de novo standard of review. Moore ex rel. Benton County v. Renick, 626 So. 2d 148, 151 (Miss. 1993). In other words, we will use the same standard applied by the trial court. Renick, 626 So. 2d at 151. De novo review of a case requires that we examine all evidence in the record in a light most favorable to the non- moving party. Id. (citing Smith v. Sanders, 485 So. 2d 1051, 1054 (Miss. 1986)). Mississippi Rule of Civil Procedure 56(c) dictates that summary judgment is only granted when the moving party illustrates that there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Thus, when we review a Rule 56(c) motion that has been granted, we do not rule on the issues, but rather we determine whether there are issues to be tried. Renick, 626 So. 2d at 151.
¶7. Though the State's brief raises only three issues on appeal, we have divided the issues into four distinct sections to address not only the issues raised by the State but also the affirmative defenses raised by Dr. Muse.
I. THE STATE IS NOT REQUIRED TO PROVE DAMAGES AS A RESULT OF MUSE'S VIOLATION OF STATUTORY CONFLICT OF INTEREST LAWS.
¶8. The Ethics Commission charges Dr. Muse with violating Mississippi Code Annotated § 25-4-105(1), which reads:
"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." Miss. Code Ann. § 25-4-105(1)(Supp. 1997).
The Ethics Commission argues that Dr. Muse violated this statute by entering into a contract, on behalf of the college, with his wife, Vashti, and that the State is entitled to recover Vashti's salary for the thirteen years that she was employed in violation of this statute. The trial court dismissed the case, holding that even if Vashti's employment violated the statute, the Ethics Commission failed to prove that the State sustained any damages as a result of her employment.
¶9. Our Ethics in Government Act stems from the provisions of Section 109 of the Mississippi Constitution of 1890 which provides as follows:
"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 ...