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 4, 2002, basing its approval solely on the facts and circumstances stated herein.
 

May a mayor participate in a hearing to re-zone property from agricultural to residential use when the owners of the property may in the future request the property to be re-zoned commercial for a funeral home that would compete with the mayor’s business?

Your opinion request to the Office of the Attorney General dated September 9, 2002, was referred by that Office to the Mississippi Ethics Commission on September 17, 2002, as your request involves the above issue that concern the Mississippi conflict of interest laws.

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(c), (d), (g)(ii), (h), (l), (n) and (p)(i) state:
 

“(c) ‘Business’ means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company,  self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a  nonprofit corporation or other such entity, association or organization receiving public funds.

(d) ‘Business with which he is associated’ means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.

(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.”

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.”

As City Clerk, I have been requested to seek an official Attorney General’s opinion from you on the issue of a potential conflict of interest regarding the Mayor’s participation in a rezoning matter raised by a citizen involved in a rezoning controversy.

For the purposes of this opinion, please assume the following facts:

1. The City is governed under a special charter which provides that the Mayor presides over all meetings of the Board of Mayor and Commissioners, and votes only in the case of a tie.

2. The City has received a request from several area residents that the area in which they reside be rezoned from its current zoning classification of A-1, Agricultural, to R-1, Single Family Residential.  The owner of certain property situated in the area proposed to be rezoned objects to the proposed rezoning.

3. The objector purchased his tract in 2002.  There is a church situated upon the property, which is a permitted use under the current zoning classification of A-1, Agricultural, and is also a permitted use under the proposed new zoning classification of R-1, Single Family Residential.

4. The objector previously sought to have his property rezoned from A-1, Agricultural, to C-3, General Commercial, for the specific purpose of converting the church to a funeral home.  His rezoning efforts failed.

5. The Mayor is the principal owner and operator of funeral homes situated in  a region of Mississippi, including a funeral home located in the City.  The Mayor has been in the funeral home business for years, and his family, for many years previously.

6. At the public hearing on the application for rezoning from A-1, Agricultural to R-1, Single Family Residential sought by the area residents, the objector raised the Mayor’s ownership of funeral homes as a conflict of interest, under the theory that the Mayor would not want the objector to locate a funeral home in the City, and since that the objector’s funeral home, if ever permitted, would be in competition with the Mayor’s funeral home.

 
The specific question to which the City seeks an official Attorney General’s opinion is a follows:

Does the ownership and operation of a funeral home by the Mayor of the City create a conflict of interest which would require him to recuse himself, and not to participate, or in the event of a tie, to vote, in a rezoning hearing in which an objector to the rezoning owns property which he hopes, at some future time, to convert to use as a funeral home, despite the fact that a funeral home is not a permitted use under either the current or the proposed zoning classification?

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

The conflict of interest laws do not prohibit a mayor from participating in a re-zoning hearing for property being re-zoned from agricultural to residential use as long as the mayor will not obtain a pecuniary benefit.

Based on the facts described by the requestor, the property in question can continue to be  used as a church regardless if the zoning is agricultural or residential.   Therefore, the mayor’s participation in the current re-zoning issue, property from agricultural to residential, will not alter the property owner’s current inability to use the property as a funeral home.  Thereby, the question of competition with the mayor’s funeral home is not currently at issue should the property be re-zoned residential.

Notwithstanding the above, the requestor should advise the mayor that should the property in question come before the board for re-zoning to commercial use, i.e., for a funeral home that would compete with the mayor’s business, the mayor must recuse himself to avoid a violation of Code Section 25-4-105(1)and to fully comply with Code Section 25-4-101, both cited above.

Code Section 25-4-105(1) prohibits a public servant from using his official position to obtain a pecuniary benefit for himself, other than that compensation provided by law, or to obtain pecuniary benefit for any relative or any business with which he is associated.

This means the mayor must totally and completely recuse himself from all matters coming before the board related to re-zoning the subject property as commercial to avoid violating Code Section 25-4-105(1).   As re-zoning the property as commercial would raise the question of competition with the mayor’s funeral homes.

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 a 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 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, a 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.

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.

Clearly, the mayor participating in a re-zoning hearing for property that would compete with his funeral home business has the potential of creating suspicion among the public and reflecting unfavorably upon the city and must be avoided.  Therefore, Code Section 25-4-101 is another reason why the mayor must totally and completely recuse himself from all discussions, actions and decisions concerning re-zoning the subject property as commercial.  As re-zoning the property as commercial would raise the question of competition with the mayor’s funeral homes.

Scott Rankin
Executive Director