This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on October 6, 1995.
 

May an officer of a bank that serves as a municipality's depository, investment broker, paying agent, bond registrar, trustee and financial advisor be appointed to that same municipality's planning commission board?
 
          The Mississippi Ethics Commission is restricted 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, Mississippi laws outside the jurisdiction of the Commission and internal rules and regulations of the local governmental entity are not addressed by this opinion.

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

My firm serves as attorneys for the City. This is written to request a formal opinion from the Mississippi Ethics Commission.

The City has by ordinance established a Planning Commission which is responsible for considering "such matters pertaining to city planning as are submitted to it in writing and are originated by the Commission and to recommend to the City Council such action as may be agreed upon by such Commission." The work of the Commission includes zoning, regulations of subdivision, development and other matters relating to community development and planning.

The Mayor of the City has appointed to the Planning Commission a person who is employed by and occupies an officer position with a bank which has offices in the City. A question has arisen as to whether this individual can serve on the Planning Commission without violating the provisions of Mississippi Code Ann. § 254-1 OS (Supp. 1995). When considering this matter, you are requested to be sure to take into account the various relationships which the City has with the bank currently or may have in the future. These include, but are not limited to, depository, investment broker, paying agent, bond registrar, trustee and financial advisor.

Presently the individual is attending meetings of the Planning Commission, but will not comment on any matters before the Commission and will not act as a voting member of the Commission until such time as the matter is resolved by the official opinion from your office.

          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(g)(ii)(v), (h), (k)(i)(ii), (1), (m) and (p)(i) states:

          "(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

        (ii) Municipalities; 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.

          (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.

          (k) 'Material financial interest' means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

        (i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

        (ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00).

(1) '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 government. Code Section 25-4-105(1), (3)(a), (4)(a) and (5) states:

"(1) No public servant shall use his official position to obtain pecuniary benefit for himself other than that compensation provided by law, or to obtain pecuniary benefit for any relative or any business with which he is associated.

(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.

(4) Notwithstanding the provisions of subsection (3) of this section, a public servant or his relative:

(a) May be an officer or stockholder of banks or savings and loan associations or other such financial institutions bidding for bonds, notes or other evidences of debt or for the privilege of keeping as depositories the public funds of a governmental entity thereof or the editor or employee of any newspaper in which legal notices are required to be published in respect to the publication of said legal notices.

(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."

          The Commission formally adopts Advisory Opinions No. 93-032-E and No.89-3 1-E in response to this request and by attachment incorporates them into this opinion.

          Advisory Opinion No. 93-032-E opines that a member of a municipal planning and zoning commission is a "public servant" of the municipality.

          Advisory Opinion No.89-31-E opines that an advisory board member [or a board member] of a bank is not included in the exception set forth in Code Section 25-4-105(4)(a) which exempts officers and stockholders who are public servants from the prohibitions set forth in Code Section 25- 4-105(3)(a).

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

          A member of the municipality's planning commission may be an officer of a bank serving as the municipality's depository and/or bidding on the municipality's bonds, notes or other evidences of debt without violating Code Section 25-4-105(3)(a), cited above, as such relationships fall within the exception set forth in the above cited Code Section 25-4-105(4)(a).

          As stated above, the appointment of a member of the board of directors of the municipality's depository to the municipality's planning commission would be prohibited by Code Section 25-4-105(3)(a)

          The requestor is advised that the bank serving as the municipality's investment broker, paying agent, bond registrar, trustee or financial advisor would not come within the exceptions set forth in Code Section 25-4-105(4)(a). An officer of a bank serving a municipality in one of these capacities would be prohibited by Code Section 25-4-105(3)(a) from being appointed to the municipality's planning commission.

          In addition to the above, the requestor also must remain keenly aware of the above cited Code Section 25-4-105(1) and (5).

          Code Section 25-4-105(1) prohibits public servants from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business with which they are associated.

          In order to avoid using their official positions to obtain a pecuniary benefit, the public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests.

          A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during an official meeting, but also avoid discussing the subject matter with board members, staff, employees or any other person prior to and after the official meeting. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

          Also in order to properly recuse oneself from a matter, the public servant must leave the room or area where such discussions, considerations and/or actions take place. The minutes of the governing entity's board should state the public servant left the meeting by showing him or her absent for that matter.

          Code Section 25-4-105(5) prohibits a public servant from intentionally using or disclosing non-public information gained in the course of or by reason of one's official position that could result in a pecuniary benefit for the public servant, a relative or any other person. A person within the meaning set forth in Code Section 25-4-103(m), cited above, would include a bank.

          The issues presented by the requestor also must be viewed as they relate to Code Section 25- 4-101, set forth above. This code section sets the tone for the conflict of interest laws as it is the Legislature's "Declaration of Public Policy." This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.
 
 

Ronald E Crowe Executive Director