This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on August 6, 1999, basing its approval solely on the facts and circumstances stated herein.

ISSUE 1. May a realtor who is a member of the city planning and zoning commission become the listing agent for a condominium after the city planning and zoning commission approved the condominium's variance?

ISSUE 2. May a real estate appraiser who is a member of the city planning and zoning commission oppose a landscape ordinance that financially affects commercial property developers when the appraiser on one occasion was the agent for one of the developers on a property purchase from the city?

ISSUE 3. May a builder, an insurance agent and an architect serve on the city planning and zoning commission?

ISSUE 4. When should city planning and zoning commission members recuse themselves?

ISSUE 5. How and when are city planning and zoning commission members removed for violations of the state conflict of interest laws?

ISSUE 6. Who is authorized to bring a complaint under the Ethics in Government Act ?

ISSUE 7. May an alderman attend and comment on projects at the city planning and zoning commission's meetings?

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:

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 25-4-101 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 (c), (d), (g)(ii)(v), (h), (i), (k)(i)(ii), (l), (m), (n), (o) and (p)(i)(ii)(iii) states:

"(c) 'Business' means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a nonprofit corporation or other such entity, association or organization receiving public funds.

(d) 'Business with which he is associated' means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.

(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(ii) Municipalities; and

(v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.

(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.

(i) 'Income' means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.

(k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).

(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.

(m) 'Person' means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.

(n) 'Property' means all real or personal property.

(o) 'Public funds' means money belonging to the government.

(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."

Code Section 25-4-105 (1), (2) and (3)(a)(b)(d)(e) and (5) 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.

(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.

(3) No public servant shall:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, 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, officer, employee or agent.

(b) Be a purchaser, direct or indirect, at any sale made by him in his official capacity or by the governmental entity of which he is an officer or employee, except in respect of the sale of goods or services when provided as public utilities or offered to the general public on a uniform price schedule.

(d) Perform any service for any compensation during his term of office or employment by which he attempts to influence a decision of the authority of the governmental entity of which he is a member.

(e) Perform any service for any compensation for any person or business after termination of his office or employment is relation to any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated during the period of his service or employment.

(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information."

Code Section 25-4-107 (1) states:

"(1) Any complaint for a violation of this article shall be brought in the circuit court of the county in which the violation occurred; provided, however, that upon the motion of the defendant such action shall be removed to the county in which the defendant resides. Any such complaint may be initiated only by the Mississippi Ethics Commission or the district attorney of the county in which the violation occurred."

Code Section 25-4-109 (1) and (2) states:

"(1) Upon a finding by clear and convincing evidence that any elected public servant or other person has violated any provision of this article, a circuit court of competent jurisdiction may censure the elected public servant or remove the elected public servant from office or impose a civil fine of not more than five thousand dollars ($5,000.00) or both.

(2) Upon a finding by clear and convincing evidence that any nonelected public servant has violated any provision of this article, a circuit court of competent jurisdiction may censure, remove, suspend, or order a reduction in pay or demotion of the nonelected public servant or impose a civil fine of not more than five thousand dollars ($5,000.00) or both."

Pertinent facts and circumstances in the form of the requestor's letter, absent identifying data, are attached hereto and considered a part of this opinion.

The Commission formally adopts Advisory Opinions No. 93-032-E, No. 98-126-E and No. 98-135-E in response to this request and by attachment incorporates them into this opinion.

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

ISSUE 1. Code Section 25-4-105 (1), cited above, prohibits a city planning and zoning commission member from using his or her official position to obtain a pecuniary benefit for himself or herself or a business with which he or she is associated.

To avoid using their official positions to obtain a pecuniary benefit, a public servant must totally and completely recuse himself or herself from subject matters providing the pecuniary interests. An abstention is a vote with the majority of the governing entity's board and therefore does not qualify as a recusal.

A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during the official meeting, but also avoid discussing the subject matter with other board members, staff or any other person prior to and after the official meeting. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

Also to properly recuse oneself from a matter, the public servant must leave the room or area where such discussions, considerations and/or actions take place. The minutes of the governing entity's board should state the public servant left the meeting by showing him or her absent for that matter.

The requestor's facts are not sufficient to determine whether the commission member used her official position to become the listing agent for the condominium. Further, an advisory opinion is not the proper process to determine if a violation of the state conflict of interest laws has occurred. Only by way of an investigation can such a determination be made.

ISSUE 2. It is not as such a violation of the state conflict of interest laws for a real estate appraiser who is a member of the city planning and zoning commission to oppose a landscape ordinance that financially affects commercial property developers when the appraiser on one occasion was the agent for one of the developers.

Notwithstanding the above, Code Section 25-4-105 (3)(a), cited above, prohibits a city planning and zoning commission member from being a contractor, subcontractor or vendor with the city or from having a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent.

Therefore, the city planning and zoning commission member may not perform appraisals for the city and be compensated by the city for said appraisals.

The requestor's facts are not sufficient to determine whether the commission member has a material financial interest in the developer's business by way of his acting as an agent for the developer who purchased the city's property.

The requestor is referred to the attached Advisory Opinion No. 93-032-E, Question 3, for an additional discussion of the application of Code Section 25-4-105 (3)(a) to a planning and zoning commission member.

Also notwithstanding the above, Code Section 25-4-105 (3)(b), cited above, prohibits a city planning and zoning commission member from being a purchaser, direct or indirect, at any sale made by the city of which he is an officer.

The requestor's facts are not sufficient to determine if the commission member by way of his acting as an agent for the developer who purchased the city's property was in fact an indirect purchaser of the property sold by the city.

Further, an advisory opinion is not the proper process to determine if a violation of the state conflict of interest laws has occurred. Only by way of an investigation can such a determination be made.

ISSUE 3. The state conflict of interest laws do not as such prohibit a builder, an insurance agent and an architect from serving on the city planning and zoning commission.

The requestor's facts are not sufficient to allow a more detailed response. It is sufficient to say that any member of a governmental board, regardless of his or her profession, can violate the state conflict of interest laws or avoid such violations depending on his or her diligence and effort.

The requestor is referred to the attached Advisory Opinions No. 93-032-E, No. 98-126-E and No. 98-135-E which discuss the application of the state conflict of interest laws to an architect serving on a planning and development district. Generally, the application of the conflict of interest laws discussed in the attached advisory opinions regarding an architect would apply in the same manner to commissioners serving in other professions such as a builder or an insurance agent.

ISSUE 4. The requestor's facts are not sufficient for a response to this Issue. However, the requestor is referred to the above ISSUE 1 regarding the discussion of Code Section 25-4-105 (1) and what is a proper recusal.

The requestor is also advised to study the above cited Code Section 25-4-105 (3)(d).

Code Section 25-4-105 (3)(d) prohibits a public servant from performing any service for any compensation during his term of office or employment by which he attempts to influence a decision of the authority of the governmental entity of which he is a member.

In most instances, a recusal as discussed above will allow a public servant to avoid a violation of Code Section 25-4-105 (3)(d).

In addition to the above, the requestor is referred to the attached Advisory Opinion No. 93-032-E, Question 2, regarding the use of a proper recusal to avoid a violation of Code Section 25-4-105 (1) and (3)(d).

The requestor is advised that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105 (2) or (3)(a). Even without a board member's vote, the authorization by the member's board nonetheless results in a contract in which the board member has a prohibited interest.

ISSUE 5. Code Section 25-4-109, cited above, provides that upon a finding of clear and convincing evidence that any nonelected public servant has violated any provision of Article 3, The Ethics in Government laws, a circuit court of competent jurisdiction may censure, remove, suspend, or order a reduction in pay or demotion of the nonelected public servant.

ISSUE 6. Code Section 25-4-107 (1), cited above, provides that all complaints for a violation of Article 3 of the Mississippi Ethics in Government Act shall be brought in the circuit court and such complaints may be initiated only by the Mississippi Ethics Commission or the district attorney.

ISSUE 7. The requestor's facts are not sufficient to allow a more detailed response. However, the requestor is advised that all the state conflict of interest laws discussed in this opinion and their application to city planning and zoning commissioners also equally pertain to an alderman.

In addition, this issues presented by the requestor also must be viewed as it relates to Code Section 25-4-101, set forth above. This code section sets the tone for the conflict of interest laws as the Legislature's "Declaration of Public Policy." This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.

The board of aldermen is the entity that hears the appeals from the city planning and zoning commission. Clearly, an alderman attending the city planning and zoning commission meeting and commenting on the city planning and zoning commission's decisions raises public policy concerns when the alderman will participate in any appeals to the board of aldermen of the city planning and zoning commission's decisions.

Therefore, an alderman should not attend city planning and zoning commission meetings and comment on city planning and zoning commission decisions when the board of aldermen serves as the appeal board for decisions made by the city planning and zoning commission in order to fully comply with the public policy mandate set forth in Code Section 25-4-101 and to protect the integrity of the appeal process.
 
 

Ronald E. Crowe
Executive Director