This Advisory Opinion concerns the following issues as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on February 18, 2005, basing its approval solely on the facts and circumstances stated herein.
 

ISSUE 1:  May an alderman accept economic development assistance from the city he serves?

ISSUE 2:  May an alderman apply to the city he serves for zoning changes to his own real 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:

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(b), (f)(i)(ii), (g)(ii), (h), (l), (o) and (p)(i)(ii)(iii) states:
 

“(b) ‘Benefit’ means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.

(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.

(o) ‘Public funds’ means money belonging to the government.

(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.
 

I represent a Ward as an Alderman in the City.

I own some property within the City which I’d like to develop in the future.

Currently the City takes action to assist developers with projects by using Tax Increment Financing, Regional Economic Development Act, Special Assessment Districts and assisting with other public infrastructure that is legal for the City to do.

Opinion Question 1:  When I choose to develop this property, may I request and receive the same type of assistance as the other developers using the above methods without creating a conflict of interest as long as I vote against any such assistance?

Opinion Question 2:  Is there a method in which I may apply for rezoning that doesn’t create a conflict of interest?

The Commission formally adopts Advisory Opinions No. 04-045-E and No. 03-079-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.

ISSUE 1. Section 109, Miss. Const. of 1890, and its statutory parallel, Section 25-4-105(2), Miss. Code of 1972, both quoted above, prohibit a member of a public board from having an interest in a contract authorized by that board during his or her term or for one year thereafter. Frazier v. State, ex rel. Pittman, 504 So.2d 675, 693 (Miss. 1987). Therefore, the requestor is prohibited from receiving any type of assistance from the city which would involve a contract during his term or for a year after leaving office. A recusal will not prevent or ameliorate a violation of Constitutional Section 109 and Code Section 25-4-105(2), as they do not require any affirmative act by an individual member but merely action by the board.

The requestor would also be prohibited from participating in any type of financial assistance from the city, even if that assistance does not involve a contract. Section 25-4-105(1), Miss. Code of 1972, quoted above, prohibits a public servant from using his official position to obtain pecuniary benefit for himself. Any action an alderman takes in his or her role as alderman constitutes a use of position. Such actions include, but are not limited to, casting a vote, discussing a matter in a board meeting and private and public conversations with other aldermen about a matter of city business. If such a use of position resulted in a monetary benefit to the alderman then a violation of Code Section 25-4-105(1) would be complete.

Thus, the alderman must recuse himself from any action which could result in a pecuniary benefit to him. 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 city employees 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. Voting against the measure is also insufficient to fully effect 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. Again, the requestor is reminded that recusal will not prevent or ameliorate a violation of Constitutional Section 109 and Code Section 25-4-105(2), as they do not require any affirmative act by an individual member but merely action by the board.

ISSUE 2. Zoning actions generally do not constitute a contract. See Advisory Opinions. No. 04-045-E and 03-079-E. Thus, a zoning change affecting the requestor’s real property is not absolutely prohibited. However, the requestor himself would be prohibited from participating in the rezoning action if it would result in a pecuniary benefit to him, such as an appreciation in the value of his realty. The discussion of recusal under Code Section 25-4-105(1) above is also applicable to zoning actions. These restrictions notwithstanding, the requestor may apply for the zoning change in his capacity as a private landowner, but he may not in any way use his position as alderman to effectuate the rezoning. He may appear in person before the planning or zoning commission but may not have private conversations with commission members or staff. He may not appear before the board of aldermen in his individual capacity to present his rezoning request, but he may send a representative to do so if the representative fully discloses the requestor’s interest in the property.

Finally, the requestor should consider the application of Section 25-4-101, Miss. Code of 1972, in each of these scenarios. In that section the Legislature has declared that public servants should conduct themselves in a manner which enhances the public trust in government and avoid actions which may tend to create public suspicion regarding the honesty and integrity of those in government. If an alderman realizes some financial benefit from an action by the city, some among the public are bound to suspect the alderman enjoyed an unfair advantage because of his position.
 
Therefore, the State’s public policy set forth in Code Section 25-4-101 is another reason why an alderman may not appear before the board of aldermen in his individual capacity to present his rezoning request and must be certain that his representative fully discloses the alderman’s interest in the property when appearing before the board of aldermen.
 

Scott Rankin
Executive Director