ADVISORY OPINION NO. 07-039-E

April 6, 2007

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 25-4-101, Miss. Code of 1972.

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.

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

(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.

(c) “Business” means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a nonprofit corporation or other such entity, association or organization receiving public funds.

(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.

(m) “Person” means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.

(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.

(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information.

II. FACTS

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

On behalf of the City, I have been asked to seek an advisory opinion concerning two separate issues involving the City’s Planning Department.

Issue 1: The first issue involves the role of a City employee who works as an administrator with both the City’s Building and Development, and Planning Departments, and who also holds a realtor’s license here in the City.

I have reviewed prior opinions of the Commission that speak peripherally to this issue, including Official Advisory Opinion No. 99-064-E (addressing city planning commission member with outside employment as a realtor), and Official Advisory Opinion No. 03-083-E (addressing city alderman employed by a real estate agency). However, our issue differs slightly, because the subject employee’s position in the two City departments brings her into near-constant contact with proposed variances, special exceptions, planning and building issues. The employee does not see only those issues that are considered by formal commissions or boards; she is involved routinely with broader development and building issues in a City that is expanding rapidly, and which sees numerous commercial and residential projects proposed and/or rejected on a near-daily basis. Bluntly, the City is concerned that the very nature of her position with the City could provide her some advantage in her real estate business, whether intended or incidental. The city is also concerned that, by virtue of her private affiliation or profession, the interest of a citizen, land owner, developer, or some kind of competing real estate entity or individual could be harmed, or could reasonably be feared to be harmed, by that interest.

Simple recusal is not a true option for her or the City, as her duties are more ongoing than appointed committee or board members.

Your office may be able to form the issues for our consideration better than I, but the issues that occur to me are:

1. whether the employee can continue to serve in her role as an administrator within the City’s Building and Development, and Planning Departments;

2. whether the employee must excuse herself from involvement with projects on which she, or her real estate agency has or may have any involvement (and if so, the threshold of involvement that would trigger her withdrawal from such projects); and

3. any other issues, or requirements that may need to be placed on the employee’s activities as a City employee, that your office sees as a role of this employee’s employment with the City, and additional activities as a realtor.

Issue 2. The City’s Planning Commission has a commissioner who is also a member of an engineering firm that occasionally has matters placed before the Planning Commission and/or the Board of Aldermen. This raises a couple of questions for your consideration and advice. First, the City seeks an opinion regarding whether this commissioner must recuse himself on any matters other than those in which his engineering firm is involved, and further, whether he must recused himself on all matters in which his firm is involved, or only those projects in which he is working directly. Second, can this commissioner, in his capacity as an engineer, submit projects for consideration by the City, before those projects reach the Planning Commission or Board of Aldermen stage?

III. ANALYSIS

Issue 1: Pursuant to Section 25-4-105(1), Miss. Code of 1972, the city employee may not use her position with the city to obtain pecuniary benefit for herself or any business with which she is associated, such as a realty company. See definitions at Section 25-4-103(l) and (d), Miss. Code of 1972, above. Nor may the city employee use or disclose information gained through her city employment in any way which could financially benefit her, her business or anyone else if that information is not public. See Section 25-4-105(5), Miss. Code of 1972, above. Additionally, Section 25-4-101, Miss. Code of 1972, above, admonishes public servants to 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 or reflect unfavorably upon the government.

The Ethics in Government Laws do not absolutely prohibit the realtor/employee from continuing to serve in her role as an administrator within the City’s Building and Development, and Planning Departments. However, as the requestor puts it, recusal is not a viable option for the employee. Consequently, the only option for the employee to comply with the Ethics in Government Laws is to forego any business opportunities which may conflict with her duties to the city and which might run afoul of her obligations as a licensed realtor.

She would be obliged to avoid any participation in actions by the city which would result in pecuniary benefit to herself as a realtor or to any business with which she is associated, as defined above. Individual potential conflicts can only be adequately assessed on a case-by-case basis and only after gathering specific facts about the particular situation which may well involve a new opinion for each such situation. One can envision numerous scenarios in which an action by the city could have a financial impact on real estate business within the city. Practicing such constant vigilance to guard against such conflicts and abandoning clients or projects which stand to benefit from her actions on behalf of the city seem to be difficult for such a realtor.

Such a situation establishes an inherent and ongoing conflict of interest, is fraught with peril, is inadvisable and is perhaps untenable for the employee. This Commission feels that the employee and the city authorities should carefully consider the public policy codified in Section 25-4-101and whether it can be reconciled with the present situation. The Commission cannot reconcile these problems..

Issue 2: The planning commission member is also subject to the restrictions codified in Section 25-4-105(1) and (5). Obviously the planning commission member must not disclose or in any way use any non-public information gained through his government service. Also, if an action of city government stands to have a monetary effect on the planning commission member’s firm, then he must fully recuse himself from that action to avoid violating Section 25-4-105(1).

A total and complete recusal requires the public servant leave the meeting room before the matter comes up for discussion and remain absent until the vote is concluded. The public servant must not only avoid debating, discussing or taking action on the subject matter during official meetings or deliberations but must also avoid discussing the subject matter with anyone. 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, any minutes or other record of the meeting or other proceeding should state the recusing member left the room before the matter came before the public body and did not return until after the vote.

MISSISSIPPI ETHICS COMMISSION


BY: Tom Hood, Executive Director and
Chief Counsel