ADVISORY OPINION NO. 06-042-E

July 14, 2006

The Mississippi Ethics Commission issued this opinion on the date shown above in accordance with Section 25-4-17(i), Mississippi Code of 1972, as reflected upon its minutes of even date. The Commission is empowered to interpret and opine only upon Article IV, Section 109, Mississippi Constitution of 1890, and Article 3, Chapter 4, Title 25, Mississippi Code of 1972. This opinion does not interpret or offer indemnity from liability for any other laws, rules or regulations. The Commission based this opinion solely on the facts and circumstances provided by the requestor as restated herein. The indemnity provided under Section 25-4-17(i) is limited to the individual who requested this opinion and to the accuracy and completeness of these facts.

I. LAW

The pertinent Ethics in Government Laws to be considered here are as follows, to wit:

Section 109, Miss. Const. of 1890.

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.

Section 25-4-103, Miss. Code of 1972.

(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.

(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.

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

Section 25-4-105, Miss. Code of 1972.

(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.

II. FACTS

Facts provided by the requestor are set forth below, with identifying information redacted, and are considered a part of this opinion.

This letter is to request an advisory opinion on possible conflicts while serving on the ... Planning Commission. Should there be any questions, please contact me. The situation follows:

I am in the real estate business and a member of the City Planning Commission, which is in an advisory capacity to the Mayor and Board of Aldermen. The Governor’s office held planning sessions in the City and a model code has been given the City for its consideration. The Planning Commission has been asked by the Board to evaluate the new “SmartCode”, and make a recommendation. The SmartCode is a different concept than our traditional zoning.

All members of the Commission are residents of the City and own their home within the City. Also, as some of the other members, I own commercial property in the downtown area, which has been devastated by Katrina, and it is my intention to rebuild or build something similar.

The Commission has held workshops in which portions of the model Code is discussed and suggested changes are made. As Secretary, I correct the document as the Commission dictates and furnish the edited pages to them at the next meeting. The zoning map is also edited to reflect the new “transect” zones.

Other than the concept, there are not many drastic changes in the new proposed SmartCode zoning and our current traditional ordinance. The idea of mixed use residential/retail is probably the major change but in the areas that may be mixed use, our City had a great deal of mixed use before Katrina. There has been controversy over this since most citizens don’t want a business next door. However, a Commission member would be required to help recommend the boundaries for a transect zone which could or could not have a ice cream parlor next door to his or her residence.

The question of building heights seems to get some attention from the public. The hype is probably caused by the condo boom (or bust). The heights the Commission seems to be favoring are not much different than current height limits. In one zone, it is exactly the same and in another zone, the building could be as much as 8’ higher. (The heights in the SmartCode are regulated by the number of floors, not feet.) [emphasis in original]

If heights are reduced, from the current zoning limits, it could reduce the value of some downtown property. It is in this area that I own property and reduced heights could affect the value of my property.

At some point, the Commission is going to have to either recommend the SmartCode to the Board or oppose its adoption. Therefore, my questions are as follows:

1. Do I have a conflict of interest recommending the boundaries of a transect zone? Do the other members have a conflict for the same reason?

2. Do I have a conflict of interest discussing the height issue with other members of the Commission either in a workshop session, privately or in a regular meeting?

3. Do I have a conflict in discussing the entire Code or portions of it, with other Commission members, in relation to the question of what to advise the Board on the adoption of the Code in its entirety?

4. Do I have a conflict in voting on what to advise the Board on the adoption of the Code in its entirety?

Your attention to this matter will be greatly appreciated.

III. ANALYSIS

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 any direct or indirect interest in a contract with the government 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). Zoning ordinances are not contracts with the city government. See Ops. Miss. Ethics Commn. No. 04-045-E and 03-079-E. Therefore, Section 109 and Section 25-4-105(2) are not applicable to these facts.

Section 25-4-105(1), Miss. Code of 1972, prohibits a public servant, like a member of a municipal planning commission, from using his position in government to obtain “pecuniary benefit” for himself, his spouse, child or parent, or any “business with which he is associated.” See definitions in Section 25-4-103(l) and (d), above. An appreciation to the value of real property would constitute a pecuniary benefit for the property owner, as would the avoidance of depreciation, and would operate to prohibit a planning commission member from participating in the proposed action.

However, under these circumstances and at this juncture, there are no facts to indicate the requestor would benefit from adoption of a new, city-wide zoning plan. Any monetary benefit to the requestor which might be divined from these facts would be remote in time and would require speculation about the future effect of potential regulations. Such speculation about future events is insufficient to prohibit the requestor from participating in planning commission discussions or actions at this time. See Op. Miss. Ethics Commn. No. 03-123-E. If the requestor identifies particular potential conflicts in the future, he should request another advisory opinion based on any additional facts available at that point.

MISSISSIPPI ETHICS COMMISSION


BY: Tom Hood, Executive Director and
Chief Counsel