This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on January 3, 2003, basing its approval solely on the facts and circumstances stated herein.
 

May an alderman participate in discussions and votes related to a re-zoning issue that affects the value of his property?

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

“(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.

(q) ‘Relative’ means the spouse, child or parent.”

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 am writing this letter as Attorney for the City seeking an opinion on a matter that will be before the Board.  The facts are as follows: Certain citizens have requested a change in our Zoning Ordinance to allow a gravel and sand mining operation, etc.: one of our Aldermen lives adjacent to this property and the gravel vein also runs through his land.  Whether he opposes this request or is in favor of it, it could affect the value of his property, either favorably or unfavorably.  He has been formally requested by the proponents of the change to recuse himself from all consideration of this matter.  They are asserting that he has a pecuniary interest in the result and should not participate in any way in discussions or voting.  His wife is one of the main objectors, as well as his sister-in-law, who also lives next to the area in question.  Many who live in this area have made their objections to the change known and have expressed their feelings concerning same. The question is, should this Alderman recuse himself from consideration and voting on this matter, or does his responsibility to his constituents in his district overweight these concerns?

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

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 re-zoning issue, in question, will result in his violating the above cited Code Section 25-4-105(1) should he receive a pecuniary benefit through an increase or avoiding a decrease in the value of his property, in addition to 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.  While the re-zoning issue, in question, is speculative in nature as to the impact on the alderman’s property value, should he receive a pecuniary benefit from his official actions on the board of aldermen, he will be certain to violate Code Section 25-4-105(1).

 Therefore, the Commission recommends the aldermen recuse himself from the re-zoning issue to avoid the possibility of violating Code Section 25-4-105(1) as the above facts certainly provide the appearance that the alderman’s actions could affect the value of his land.

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.

The issue presented by the requestor also must be viewed as it relates to Code Section 25-4-101, set forth above.  This code section 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 alderman’s participation in the re-zoning issue with his spouse as “one of the main objectors” can be expected to create suspicion among the public and reflect unfavorably upon the public servant’s governmental entity as there will be a question of a division of loyalty on the part of the public servant.  A public servant should never place himself or herself in a situation where a private interest is competing or appears to be competing with his or her public interest.

Therefore, the State’s public policy mandate set forth in Code Section 25-4-101 is a sufficient reason in this Commission’s opinion for the alderman to avoid discussing and voting on the re-zoning issue as “it could affect the value of his property, either favorably or unfavorably” as stated in the requestor’s letter.
 

Scott Rankin
Executive Director