This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on September 7, 2001, basing its approval solely on the facts and circumstances stated herein.

May a town annex property that belongs to a member of the mayor and board of aldermen if the proposed annexation is found to be consistent with the evidence and factors of reasonableness developed by Mississippi case law and the elected official totally and completely recuses himself from all discussions, considerations and actions pertaining to the annexation matter?

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:

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(b), (g)(ii), (h), (l) and (p)(i)(ii)(iii) states:
 

"(b) "Benefit" means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.

(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.

(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) 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."

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

The Mayor and Board of Aldermen of the Town, a Code Charter municipality, have requested an Ethics Opinion based on the following facts:

The Town is considering expanding its corporate limits by annexation. The property proposed to be annexed is owned by a member of the Mayor and Board of Aldermen. Would the Ethics Commission consider this to be a violation of any relevant Constitutional or statutory authority, assuming that:

the proposed annexation is found to be reasonable, consistent with the evidence and factors of reasonableness developed by Mississippi case law; and

the elected official who owns the property in question recuses himself from all discussion and consideration of the matter?

I would appreciate a formal Opinion from the Commission at its earliest convenience.

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

It is not a violation of the state conflict of interest laws for a member of the Mayor and Board of Aldermen of a code-chartered municipality to own property to be annexed by the municipality when the proposed annexation is found by a court of competent jurisdiction to be consistent with the evidence and factors of reasonableness developed by Mississippi case law and the member totally and completely recuses himself from all discussions, considerations and actions by the Mayor and Board of Aldermen concerning the annexation.

The requestor is cautioned to advise the member of the Mayor and Board of Aldermen that his failure to totally and completely recuse himself from matters pertaining to the annexation in question could certainly be expected to result in his violating the above cited Code Section 25-4-105(1) and his failing to comply with state public policy as mandated in the above cited Code Section 25-4-101.

Code Section 25-4-105(1) prohibits a public servant, including a member of the Mayor and Board of Aldermen, from using his official position to obtain a pecuniary benefit for himself, a relative or a business with which he is associated.

Code Section 25-4-101 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 requestor is cautioned to advise the member of the Mayor and Board of Aldermen that 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.

Ronald E. Crowe

Executive Director