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 6, 2002, basing its approval solely on the facts and circumstances stated herein.
 

May a mayor apply for and receive a tax abatement from the city he serves if it is determined by the city that the improvements made to the mayor’s building comply with the requirements imposed by the city’s historic preservation districts tax abatement ordinance?

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(f)(i)(ii), (g)(ii), (h), (l) and (p)(i)(ii)(iii) state:
 

“(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.

(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.
 

The Mayor of the City has recently purchased a building in the downtown area and is making substantial renovations to the building.  The building is located in the designated Historic District.

In 1998, the City enacted a “Central Business District and Historic Preservation Districts Tax Abatement Ordinance” which provides that the increase in municipal taxes generated by the improvement or renovation to the building may be abated for a period of seven (7) years.  I have enclosed a copy of the Ordinance and the authorizing statute for your review.

The Mayor of the City has indicated that he would like to apply for tax abatement on the improvements that he has made to his building.  The procedure for a certificate of appropriateness is set out in the ordinance, but final approval of a tax abatement is expressed in the form of a resolution by the Mayor and Aldermen of the City.

Can the Mayor apply for and be granted the tax abatement?  The governing board of the City consists of the Mayor and two full-time Aldermen and the three have equal power.

Upon review of the city ordinance regarding the historic preservation district tax exemption, the Commission’s staff determined the Mayor and Aldermen assign the areas to which the historic preservation district tax exemption applies. The Mayor and Aldermen also have the discretion to approve the historic preservation district tax exemption for property within the designated area.
 
The Commission formally adopts Advisory Opinions No. 98-028-E and No. 92-108-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.

It is not a violation of Constitutional Section 109 and Code Section 25-4-105(2), both cited above, for the Mayor to request and receive a historic preservation district tax abatement from the city he also serves since granting the tax abatement results in the city withholding its right to impose its legal authority to tax and does not result in an authorization of a contract.

Notwithstanding the above, the requestor is cautioned to advise the Mayor to remain keenly aware of Code Sections 25-4-105(1) and 25-4-101, cited above.

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.

To avoid using their official positions to obtain a pecuniary benefit, the public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests.

Therefore, the Mayor must totally and completely recuse himself from any discussion, decision, or vote of the city governing authority’s approval of the required resolution related to him receiving the historic preservation district tax abatement on the improvements to his building from the city he serves.  Also, the Mayor must totally and completely avoid discussions with the city’s building officials and review boards related to him receiving the historic preservation district tax abatement on the improvements to his building.

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.

 
In addition, the requestor should advise the Mayor of Code Section 25-4-101, set forth above, which 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.

Clearly, a Mayor benefitting from his/her city’s historic preservation district tax abatememt program, whereby the Mayor and Aldermen determine the areas that the program will apply to and also have the discretion to approve or deny the application, has the potential of creating suspicion among the public and reflecting unfavorably upon the local government.

Therefore, to comply with the state’s public policy mandate set forth in Code Section 25-4-101, the Mayor must totally and completely recuse himself, as described above, from all matters related to the city approving the historic preservation district tax abatement on the improvements to his building.
 
 
 
 

Scott Rankin
Executive Director