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 9, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May a city planner submit an application for a zoning variance or exception to the city’s planning commission when the city planner stands to receive no pecuniary benefit and takes no part in the processing or consideration of his or her application?

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(f)(i)(ii), (g)(ii)(v), (h), (l), (n) and (p)(i)(ii)(iii) states in pertinent part:
 

(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) ‘Government’ means the state and all political entities thereof, both collectively and separately, including but not limited to:

(ii) Municipalities;

(v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.

(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 am writing to ask for an ethics opinion on behalf of the City.  The City’s Planning Commission is a seven member board that also functions as the Board of Adjustments for the City, voting to approve (or reject) requests for variances and special exceptions for property owners.  The City has a Planning Department which is run by the City Planner.  The City Planner does not vote on requests made to the Planning Commission or Board of Adjustments, but does review the requests and makes recommendations to the Commission at its monthly meetings.

The City Planner owns a parcel of property currently zoned agricultural.  The City Planner intends to use the property in a manner allowed under our current city ordinances provided a special exception is granted allowing the use.

The City wishes to know whether the City Planner may file an application for a special exception that would be heard by the Board of Adjustments in relation to this parcel of property.  Furthermore, if such an application may be made, what procedures should be used to prevent any conflict of interest?

The city planner is a “public servant” as defined in Code Section 25-4-103(p)(ii)(iii), cited above.

The zoning variance contemplated is not a “contract” nor would the granting of the variance make the city planner a “contractor” to the municipality as defined in Code Section 25-4-103(f), cited above.

Therefore, the relevant statutory authorities are Code Section 25-4-105(1) and Code Section 25-4-101, both cited above.

A public servant like the city planner is strictly prohibited by Code Section 25-4-105(1) from using his official position to obtain a pecuniary benefit for himself. Under these facts, any pecuniary benefit which might enure to the city planner is so remote and speculative that a violation cannot reasonably be found to exist under Code Section 25-4-105(1). Therefore, this city planner under these circumstances is not prohibited, per se, from applying for this variance or exception.

Another potential concern, however, arises from Code Section 25-4-101, the Legislature’s “Declaration of Public Policy.” Public servants should avoid any circumstance which has the potential of creating suspicion among the public and reflecting unfavorably upon the government. Such circumstances 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 government.

Any concerns the city planner might have about creating public suspicion could be allayed by totally recusing himself or herself from the proceedings in question. A total and complete recusal requires that the city planner take no action and have no involvement in his or her application. He or she may not process his or her own application; he or she may not make any recommendation to the planning commission on his or her application; and he or she must avoid debating, discussing or taking action on the application during the relevant planning commission meeting. He or she must also avoid discussing the subject matter with planning commission 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, if any, of the governmental entity’s board should state the public servant left the meeting by showing him or her absent for that matter.
 
 

Scott Rankin
Executive Director