This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on November 1, 1996, basing its approval solely on the facts and circumstances stated herein.

May a county supervisor who is simultaneously a home builder/developer vote on proposed changes to a county comprehensive plan?

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(d), (f)(i)(ii), (g)(i), (h), (1), (m) 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.

(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:
 
(i) Counties.
 
(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.

(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 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), (2), (3)(d) and (5) 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.
 
(3) No public servant shall:

(d) Perform any service for any compensation during his term of office or employment by which he attempts to influence a decision of the authority of the governmental entity of which he is a member.

(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."

Reference is made to Advisory Opinion No. 94-030-E issued by the Mississippi Ethics Commission on March 4, 1994. The question for the opinion was as follows:

Are the Mississippi Ethics in Government laws violated should a county Supervisor who is simultaneously a home builder/developer vote as to proposed changes to a county Comprehensive Plan?

I petition this Commission to furnish an opinion concerning the following circumstances involving a County Supervisor.

Are the Mississippi Ethics in Government laws violated should a county Supervisor who is simultaneously a home builder/developer vote as to proposed changes to an adopted county Comprehensive Plan involving one particular rezoning request for a specific neighborhood.

Your previous opinion involved the actual adoption of the county Comprehensive Plan by the County Board of Supervisors. Our question is only different in that it addresses a particular rezoning of a specific neighborhood from Agriculture/Residential to Low Density. This would allow the development of a subdivision with R-30 and R-10 zoning in an area that is in this county's adopted Comprehensive Plan zoned as Agriculture/Residential.

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

Constitutional Section 109 and Code Section 25-4-105(2), cited above, prohibit a supervisor from having an interest, direct or indirect, in a con tract authorized by his board during his term and for one (1) year thereafter. [Emphasis Added]

The approval or amendment of a zoning or subdivision regulation is not a contract; therefore, the supervisor's board's action in amending the comprehensive plan is not prohibited by Constitutional Section 109 and Code Section 25-4-105(2). [Emphasis Added]

Code Section 25-4-105(1), cited above, prohibits a supervisor from using his official position to obtain a pecuniary benefit for himself or any business with which he is associated.

The supervisor may vote on the comprehensive plan changes without violating Code Section 25-4-105(1), if he nor his business participate in developing the newly rezoned areas.

The supervisor or his business may participate in developing the newly rezoned areas without violating Code Section 25-4-105(1), if he totally and completely recuses himself from the actions changing the comprehensive plan.

An abstention is a vote with the majority of the governing entity's board and therefore does not qualify as a recusal.

A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during the official meeting, but also avoid discussing the subject matter with other board members, staff 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.

Al so 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.

A supervisor who is also a builder/developer must remain keenly aware of Code Section 25-4- 1 05(3)(d) and (5), cited above, when his board of supervisors is considering the approval or amendment of a comprehensive plan.

Code Section 25-4-105(3)(d) prohibits the supervisor from receiving any compensation for attempting to influence the board of supervisors' decision to approve or amended the comprehensive plan.

Code Section 25-4-105(5) prohibits the supervisor from intentionally using or disclosing any non-public information concerning the approval or amendment of the comprehensive plan gained by reason of his official position that could result in a pecuniary benefit for himself or any other person. A "person" as defined in Code Section 25-4-103(m), cited above, includes not only an individual builder/developer but any building/development company.

The issue presented by the requestor also must be viewed as it relates to Code Section 25-4- 101, set forth above. This code section sets the tone for the conflict of interest laws as 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.

To avoid suspicion among the public and unfavorable reflections upon the county, the supervisor should recuse himself from the board's action on amending the comprehensive plan; unless, he has unequivocally informed the public that he will not participate in developing the rezoned areas. Having the board's minutes reflect his decision to not participate in developing the rezoned areas is one way of informing the public.

Ronald E. Crowe Executive Director