This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 22, 2005, basing its approval solely on the facts and circumstances stated herein.

 
May an alderman who is also an architect participate in actions and discussions by the board of aldermen regarding zoning which could constitute a pecuniary benefit to his architecture firm and/or one or more of its clients?

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

“(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) ‘Government’ 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.

(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.
 

This letter will follow up on an earlier opinion and officially asks for an Advisory Opinion regarding the following matter:

I am currently an Alderman.  I am also an Architect.  In October of 2004, you issued an opinion that I should recuse myself from discussions regarding the creation of an Ordinance in the City pertaining to condominiums because my architectural firm (at that time) was involved in providing professional design services for one project that could have been impacted by my participation in such discussions.   Painful as it was, I followed your advice and recused myself from all public discussion regarding the Ordinance, including the vote to approve the Ordinance, as well as all votes regarding our specific project.  The Board of Alderman went on in January 2005 to pass an Ordinance that currently allows 180 foot tall condominiums to be built in the city.

Since that time, the City has become a political hotbed over the condominium issue with three incumbent Aldermen losing office during the recent primary and general elections over this issue alone.    The three newly elected Aldermen ran on a platform that they would seek to overturn this Ordinance and craft a new Ordinance that allows only 75 foot tall condominiums.  With seven Alderman serving on the Board, the three newly elected Aldermen would have to have one additional Alderman “cross the line” and vote with them to overturn the original Ordinance.   I don’t think this will happen, but I need to know if I would be able to participate in a vote on this issue, or if I would have to recuse myself from such a vote.  A vote to change the Ordinance back to 75 foot tall structures would not impact my projects because they have already been approved.  If such a vote were to succeed, it would only impact new projects that have yet to be presented to the City.  My firm is not currently working on any condominium project that is still subject to City approval.

If a motion were made by one of the newly elected Aldermen to re-review (or amend) the original Ordinance, and if such a motion were seconded by one of the newly elected Aldermen, then a “no-vote” from me would only reinforce the position of the remaining four original Aldermen (myself included, even though I didn’t participate or vote on the original Ordinance).  It would not provide me or my firm with any monetary benefit in that our condominium project has already been approved by the City under the original Ordinance.

If a motion were made by one of the newly elected Aldermen to ask that the issue of 180-foot tall condominiums versus 75-foot tall condominiums be put to a public vote via a non-binding or binding referendum to ascertain the publics’ opinion on the issue, then again a “no-vote” from me would only reinforce the position of the remaining four original Aldermen.  It again would not provide me or my firm with any monetary benefit in that our condominium project has already been approved by the City under the original Ordinance.

We should also raise the issue of whether I should be allowed to participate in any vote as described above if my firm is currently working on a condominium project.  My opinion is that I should be able to participate in any motion or vote regarding an attempt to revise or amend the original Ordinance, or an attempt to put the issue of condominium heights to a public vote as long as my vote is to leave the Ordinance “as-is”.  This position, after all, would not provide any monetary benefit to me or my firm.

I was really hoping to get an Opinion or at least a preliminary Opinion prior to your next meeting on July 22.  The new Board will be sworn in on July 5 and this issue will surely come up.

The prior opinion issued to the requestor is Op. Miss. Ethics Commn. No.  04-108-E. The Commission is also aware that the existing ordinance adopted in January 2005 is currently on appeal in the circuit court, and a member of the Commission’s staff has discussed that case with the requestor by telephone.

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

The requestor is correct, in a narrow and limited sense, when contending he would not violate Section 25-4-105(1), Miss. Code of 1972,  if his participation did not result in a pecuniary benefit to him, his firm or his clients, such as voting on a measure which would not impact the firm’s current or anticipated clients. If the board does indeed revisit this ordinance, that action could financially impact the requestor’s potential future clients and his firm. But that conclusion requires speculation. The Commission cannot, therefore, conclude that participation by the requestor which might result in some supposed, potential, future pecuniary benefit is currently prohibited by law. However, the requestor must be vigilant about taking actions which could benefit an entity which he anticipates becoming a client of his firm. If the requestor has reason to believe that a person or entity may become a client of the firm in the future, then he would be prohibited from participating in any action which would create a pecuniary benefit for that person or entity, even if the action and/or the benefit occurs before the client relationship is established.

There is another potential conflict which must be addressed here. Under the procedure established in Section 11-51-75, Miss. Code of 1972, the court could reverse the decision of the board and overturn the existing ordinance on appeal, sending the board back to its original debate of 2004. In that scenario, the facts would be virtually identical to the previous opinion, No. 04-108-E. Action by the board at that point could have a definite and retroactive impact upon the requestor’s ongoing construction projects. In that case the requestor would be compelled to fully recuse himself.

Once again, 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.

In closing, the Commission notes its previous admonitions regarding public policy are just as valid and relevant under these facts as they were in Op. No. 04-108-E. The Commission once again advises the requestor to avoid participating in any matters which might have any impact upon his firm or his client if for no other reason than to avoid the mere appearance of impropriety. Pursuant to Section 25-4-101, Miss. Code of 1972, quoted above, 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 the requestor enters the public debate on a proposal which would not result in a pecuniary benefit to his firm or its clients, someone else may propose a measure which would result in such a benefit. The requestor would then be forced to withdraw from the discussion for fear of violating Code Section 25-4-105(1). That course of conduct would skirt the law and invite a host of complications, making it very unlikely the requestor would be able to fully comply with the Ethics in Government Laws. For these reasons the Commission advises the requestor to completely remove himself from the public discussion surrounding the contemplated zoning measures.
 
 

Scott Rankin
Executive Director