This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 7, 2004, basing its approval solely on the facts and circumstances stated herein.

 
May a mayor realize a potential pecuniary benefit from a zoning change if he fully removes himself from the rezoning process?

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 25-4-103(f)(i)(ii), (g)(i)(ii)(iii)(iv)(v), (l) and (p)(i)(ii)(ii) states:
 

 “(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:

(i) Counties;

(ii) Municipalities;

(iii) All school districts;

(iv) All courts; and

(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.
 
(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),  (2), and (3)(a) 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.

(3) No public servant shall:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the  governmental entity of which he is a member, officer, employee or agent.”

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
 

I would like to request an advisory opinion from the Mississippi Ethics Commission regarding my holding and contemplated sell of a purchase option on an approximately 32 acre tract of land (tract A) within the city limits where I serve as Mayor.

The historical facts of tract A and my actions are as follows:

Tract A is a small part of a large tract of land owned by the same individual for many years.  In recent years the owner began to sell portions of his land to commercial and residential developers.

In July of 2003, the owner submitted a rezoning request to the City.  The request would affect approximately 52.96 acres of which tract A was a part.  The intention of the owner was to have the entire 52.96 acres zoned for retail commercial and patio homes (PH-1) development.  However, public opposition to part of the rezoning request prompted the owner to withdraw his request for rezoning.

In late July of 2003, the owner, developer and adjacent land owners adopted and filed with the County an official agreement regarding all of the land in the owner’s withdrawn rezoning request.

Part of the agreement is that tract A would not be rezoned commercial and would remain residential (R-1) for 25 years except that the R-1 zoning could be changed to PH-1 (patio homes).

All of the above July, 2003 events were publicly reported in all the local newspapers.

In August of 2003, I paid the owner for a purchase option on tract A.  My intention was to purchase the land at a later time and develop patio homes for sale.  However, I now am somewhat leery of the development cost and am considering selling the purchase option.

In December of 2003, I began discussions with a developer who expressed interest in acquiring my purchase option, and it later became my intention to sell my purchase option to the developer who desires to build and sell patio homes.

On February 17, 2004, the owner and developer filed a rezoning request with the City.  The request asked that tract A be rezoned from R-1 to PH-1.

Because I own a purchase option on Tract A, I informed each member of the City Board of Aldermen of my holding and that in order to not violate any ethics or other statute, as well as to avoid any appearance of impropriety, I would totally and completely recuse myself from all formal and informal city discussions, meetings and actions regarding the rezoning request.

The City subsequently held an informal information gathering workshop on the rezoning request.  I did not attend the meeting.

At the next Board of Aldermen meeting, the Board held a public hearing on the rezoning request.  I also did not attend this meeting.   I later learned that the Board of Aldermen did not receive any public opposition to the request and approved the rezoning request by a vote of 5-0.

Both of the meetings were conducted by the Mayor Pro Tem.

I believe that I have taken the necessary steps to avoid any appearance of impropriety and to avoid violating any ethics statute.  However, my desire to exercise an abundance of caution leads me to request an opinion regarding my actions regarding Tract A including my possible sale of the purchase option.

Papers are on file at the County Courthouse and City Hall that document all of the filings mentioned above.  Should you need any of the papers, let me know and I will furnish copies to you.

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

Section 25-4-105(1), Miss. Code of 1972, quoted above, prohibits the mayor from using his official position to obtain a pecuniary benefit for himself. An appreciation in value of the mayor’s interest in this real property which results from the zoning change would constitute a pecuniary benefit to the mayor. If a mayor participated in the board meetings at which the rezoning was discussed and granted, he would be using his official position. This mayor was right to remove himself from those proceedings.

The only way for a public servant to avoid violating  Code Section 25-4-105(1) in such a situation is to fully  recuse himself or herself. A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during official meetings or deliberations, but also avoid discussing the subject matter with staff or any other person. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means. An abstention is considered a vote with the majority and is not a recusal. Furthermore, the minutes of the meeting should state the recusing member left the room before the matter came before the public body and did not return until after the vote.

The Commission has also consistently applied Section 109, Miss. Const. of 1890, and Section 25-4-105(2), Miss. Code of 1972, to mayors. Those sections prohibit a mayor from having any interest, direct or indirect, in any contract approved by the municipal board during the mayor’s term of office or for one year thereafter. Here, there can be no violation of Constitutional Section 109 or Code Section 25-4-105(2) because there is no contract. As the Commission found in Advisory Opinion No. 03-079-E, “[a] zoning change, or similar action, by a governmental board is not an authorization of a government contract as anticipated by Constitutional Section 109 and Code Section 25-4-105(2).” Since there is no contract, the mayor is not a contractor to the city, making Code Section 25-4-105(3)(a) equally inapplicable.

Scott Rankin
Executive Director