This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on October 1, 1999, basing its approval solely on the facts and circumstances stated herein.

May a city obtain the property of one of its aldermen by eminent domain if the city determines that the public convenience and necessity requires the city to obtain the property to expand an airport runway at the city's airport?

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 25-4-103 (f)(i)(ii), (g)(ii), (h), (l), (n), (o) and (p)(i)(ii)(iii) states:

"(f) 'Contract' means:

(i) Any agreement to which the government is a party; or

(ii) Any agreement on behalf of the government which involves the payment of public funds.

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

(ii) Municipalities.

(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.

(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) and (2) 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."

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.

I was referred to your office by the State Attorney General's Office. Our Board is meeting tonight and I would like to discuss the following issue with you.

I have been requested by the Board of Aldermen for the City to request an opinion from your office as to whether a present alderman can sell land to the city without conflict.

Presently, the City is looking at an expansion of the airport runway. The proposed land to be purchased is owned by an alderman presently elected and sitting on the board at this time.

I realize that Constitutional Section 109 and Miss. Code Ann. § 25-4-105 (2) absolutely prohibits an alderman from selling land to a town that he serves during his term and for one year thereafter. However, if the city determines that the public convenience and necessity required the purchase of the property, could the transaction be completed by an eminent domain procedure?

The Commission formally adopts Advisory Opinion No. 98-070-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.

As the requestor correctly states in the request letter, Constitutional Section 109 and Code Section 25-4-105 (2), both cited above, will absolutely prohibit the city from contracting to purchase the alderman's property for the expansion of the city's airport runway during his term and for one year thereafter.

However, Constitutional Section 109 and Code Section 25-4-105 (2) do not prohibit the transfer of the ownership of the property when ordered by a court of competent jurisdiction in an eminent domain proceeding.

As set forth in the attached advisory opinion, an order by a court of competent jurisdiction in an eminent domain proceeding results in the vesting of title in the public entity, in this instance the city, and the compensation to the landowner/public servant, in this instance the alderman, being nondiscretionary on the part of the public entity and the landowner/public servant. The compliance of both the alderman and the city are therefore mandatory acts and thus not violations of the conflict of interest laws.

The alderman must fully and completely recuse himself from all deliberations and voting concerning this matter in order to avoid a violation of the above cited Code Section 25-4-105 (1).

Code Section 25-4-105 (1) prohibits public servants from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business with which they are associated.

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. An abstention is a vote with the majority of the governing entity's board and therefore does not qualify as a recusal.

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 is cautioned to advise the board member that a recusal or an abstention will not prevent a violation of Constitutional Section 109 and Code Section 25-4-105 (2). Even without the 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.
 
 
 
Ronald E. Crowe
Executive Director