April 5, 2002
This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on April 5, 2002, basing its approval solely on the facts and circumstances stated herein.
May a city alderman take part in city discussions and actions related to a developer subdividing lots within the alderman’s neighborhood?
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), (n) 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.
(n) “Property” means all real or personal property.
(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.
I represent the City.One of our Aldermen has requested me to seek an opinion from your office.I will refer to this Alderman as Alderman “A.”
A developer has recently purchased a house and lot (hereinafter referred to as the Lot) located in the neighborhood in which Alderman “A” lives.The Lot is located close to Alderman “A’s” home.The Lot is a large lot and the developer intends to subdivide the Lot into approximately fifteen (15) smaller lots for use as single family residential home purposes.The neighborhood is zoned residential.In order to subdivide the Lot it will be necessary for the developer to proceed under the City’s subdivision ordinance.This ordinance requires that the developer submit plats and plans to the City’s Planning Commission for their consideration.The Planning Commission, after reviewing the plats and plans for the subdivision, will forward the matter to the Mayor and Board of Aldermen with either a recommendation that the subdivision be approved or that it not be approved.The Mayor and Board of Aldermen have the final say so as to whether the subdivision will be approved and allowed.The decision of the Planning Commission and the Mayor and Board is based essentially on the question of whether the developer has met the technical requirements of the subdivision ordinance (For example, are the streets the appropriate width; have the appropriate rights-of-way for utilities been provided, etc.?).The decision calls for very little discretion or judgment on the part of the Planning Commission or the City.
Matters of discretion and judgment would become involved if the developer had to seek a variance from the subdivision ordinance (For example, could he put in a road less than the minimum width required by the ordinance?)
The residents of the neighborhood are adamantly opposed to the developer’s plans to subdivide this Lot.The matter is still at the Planning Commission stage.The matter has not yet come to the Mayor and Board of Aldermen.
Alderman “A” believes that, as an Alderman, he has a duty and responsibility to his constituents/neighbors to represent their interests in this mater but he wants to make sure that he does so in compliance with the appropriate ethical considerations.
Alderman “A” would appreciate your guidance on how he should conduct himself in this matter.For example: May he engage in discussions on matters that come before the Mayor and Board of Aldermen that are related to the subdivision?May he discuss the subdivision with his neighbors and constituents?May he vote on matters related to the subdivision?On behalf of Alderman “A”, I sincerely appreciate your consideration of this matter.
The Commission contacted the requestor and inquired as to whether the alderman would receive a benefit if the developer’s proposed project succeeded or failed.While no hard facts were present, the requestor stated the general comments and feelings of the community were that if the developer’s project were approved, the property values, including the alderman’s property, might decrease in value.
Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.
Code Section 25-4-105(1), cited above, 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, cited above, 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 his failure to totally and completely recuse himself from matters pertaining to the developer’s projectin question could result in his violating Code Section 25-4-105(1) and his failing to comply with state public policy as mandated in Code Section 25-4-101.The Commission’s opinion reflects the fact the alderman or the community perceive the project’s failure or success might impact the alderman’s property value and therefore the alderman could obtain a pecuniary benefit for himself by participating in the discussion and vote on the project.
The requestor is cautioned to advise the member of the 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.
Scott Rankin
Executive Director