This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on March 1, 2002, basing its approval solely on the facts and circumstances stated herein.

May a member of the board of aldermen vote on a town's annexation that includes the board member's business property?

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, h e a d, 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."

I am requesting your opinion regarding the legality of a board member conflict of interest when his business will be included in the annexation. Code Section 25-4-103(d)

My question is, will this alderman be exempt from voting on this order if his business is included in the annexation?

The requestor is cautioned to advise the member of the 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 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 board of aldermen that an abstention is a vote with the majority of the goveming 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.

Scott Rankin

Executive Director