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 7, 2003, basing its approval solely on the facts and circumstances stated herein.
 

May a member of a planning commission vote on a zoning change request when a change in zoning could affect the value of the member’s adjacent property?

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

“(g) ‘Governmental’ means the state and all political entities thereof, both collectively and separately, including but not limited to:
 
(i) Counties;

(ii) Municipalities;

(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.(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.

(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.
 

I am a member of the County Planning Commission.  I am also a property owner on a local waterfront area, where a developer is asking for a zone change adjacent to a subdivision.  Please advise me if I should recuse myself from this zone change request, as any decision on the case will impact my property.

The following additional facts were provided to the Commission’s staff by the requestor. The property for which rezoning is proposed lies adjacent to undeveloped property purchased jointly by the requestor and his or her neighbors as a private nature reserve. It is also located near the property where the requestor resides. The requestor is personally  concerned that the proposed zoning change will negatively impact his or her property values and may have a detrimental effect on the nature of his or her neighborhood and/or the nearby natural area.

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

Public servants, such as planning commission members, are prohibited from using their official positions to obtain a pecuniary benefit as stated in Code Section 25-4-105(1), cited above. Here, the request does not concern obtaining a pecuniary benefit, but it potentially concerns avoiding a pecuniary loss. The concern is that by voting against the rezoning, the requestor could prevent a zoning change, thereby averting a possible loss in value to the requestor’s property. Conversely, if the requestor fails to block the zoning change, and if the proposed development proceeds as planned, it could enhance the value of the requestor’s property. Under this scenario, any pecuniary benefit which might enure to the requestor is so remote and speculative that a violation cannot reasonably be found to exist under Code Section 25-4-105(1).

Another potential concern, however, arises from the above cited Code Section 25-4-101, the Legislature’s “Declaration of Public Policy.”  Public servants should avoid any circumstance which has the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government. Such circumstances 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.

 
Any concerns the requestor might have about creating public suspicion could be allayed by recusing himself or herself from the proceedings in question. An abstention would not suffice, as it is considered a vote with the majority of the commission and 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.

Also 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 governmental entity’s board should state the public servant left the meeting by showing him or her absent for that matter.
 
 

Scott Rankin
Executive Director