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 5, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May an alderman who is also an architect participate in actions and discussions by the board of aldermen regarding zoning which could constitute a pecuniary benefit to his architecture firm and/or one or more of its clients?

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(d) and (l) 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.

(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.”

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 newly elected Alderman in the City. Our City is currently experiencing an influx of condominium development that has caused great concern among the City leaders and citizens. The concern is that our current Zoning Regulations do not provide adequate restrictions to properly direct the condominium development. As such and being extremely proactive, the City with the help of its Planning Commission and community input, is in the process of revising its Zoning Regulations to better control the direction of these new development projects.

I am also a partner in an architectural firm. My firm is under contract with a developer to provide plans and specifications for one of these condominium projects. We were under contract to design the project prior to my being elected Alderman. In that we have been under contract for several months, we are approximately 75% complete with the construction documents and had scheduled a construction start date for early December. As it currently stands, our design meets the existing Zoning Ordinance, but is on hold pending resolution of proposed changes to the Ordinance affecting condominium development.

As mentioned earlier, the Mayor and Board of Aldermen are conducting and continue to conduct Workshops and public hearings whereby members of the Planning Commission and community offer their input on a set of proposed regulations that will better control the new developments. There are several factors being discussed that once finalized, will be voted on by the Mayor and Board for implementation into a revised Zoning Ordinance. These factors are: Density (expressed in terms of units per acre); Building footprint (expressed as a percentage of the total size); Building height (expressed in stories); Building set backs from property lines; and Parking (expressed in terms of parking spaces per unit).

Final recommendations and subsequent changes to the above five factors may or may not have an impact on the condominium project we are contracted to provide. At this point, it is too early to tell. But one thing is clear. Any change to the current Zoning Ordinance will impact all of the condominium projects.

I am unclear on how I would be in a position of having a “conflict of interest” or imply a “perception of impropriety” by advising the City leaders and public on the merits of good versus bad planning. If I propose something that would benefit my client and it ultimately is incorporated into a revised Zoning Ordinance, then it would also serve to benefit the other condominium projects as well. If I propose changes in the areas listed above that any member of the community disagrees with, then those changes are still subject to a vote that all developers, including my client, must ultimately adhere to.

The only initial disagreement that I have with some of the other members of the Board of Aldermen is that they support twenty-story condominium towers and I do not. The project that my firm is involved with is only twelve-stories. Should I not be able to sit in the public hearings and disagree with my colleagues that twenty-stories is too high?

As an Architect who grew up in the City and who now sits on the Board of Aldermen, the condominium issue is very near and dear to my heart. I only want, as do the other Board members, what is right for the City. I applaud our intent to regulate the growth of condominiums in our City.

Finally, please know that as an Architect, I am also bound by a Professional Code of Ethics which I take very seriously.

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

Section 25-4-105(1), Miss. Code of 1972, quoted above, prohibits a public servant from using his or her official position to obtain pecuniary benefit for himself or herself or a business with which he or she is associated. The architecture firm in which the requester is a partner is definitely a “business with which he is associated,” as that term is defined in Section 25-4-103(d), Miss. Code of 1972, also quoted above. Clients of the firm may also be businesses with which the requestor is associated, depending on the amount of fees paid to the firm and the method for distributing those fees among the partners. In any event, the requestor is certainly prohibited from taking any action in his capacity as an alderman which would result in a pecuniary benefit to his firm and possibly its clients as well. Whether that action impacts others equally is irrelevant.

Many of the zoning measures which may be considered by the board of aldermen could impact directly upon the requestor’s client and indirectly upon the firm. For instance, the board might adopt height restrictions on condominiums which would require a redesign of the ongoing project and result in additional fees paid to the firm. Likewise, the board could take action which would stifle condominium development and, in turn, limit fees paid to the firm on condominium projects. Obviously, the avoidance of a loss in fees is equivalent to a pecuniary benefit. The only way for the requestor to avoid using his position as alderman to obtain pecuniary benefit for his firm and/or his clients in violation of Code Section 25-4-105(1) is for him to totally and completely recuse himself from all matters coming before the board which could result in an economic impact upon his firm and/or his clients.

A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during official meetings or deliberations, but also avoid discussing the subject matter with staff or any other person. 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, the minutes of the meeting should state the recusing member left the room before the matter came before the public body and did not return until after the vote.

Furthermore, the Commission advises the requestor to avoid participating in any matters which might have any impact upon his firm or his client if for no other reason than to avoid the mere appearance of impropriety. Pursuant to Section 25-4-101, Miss. Code of 1972, quoted above, public servants should 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.

If the requestor enters the public debate on a proposal which would not result in a pecuniary benefit to his firm or its clients, someone else may propose a measure which would result in such a benefit. For instance, someone else present at a public meeting may propose to limit condominiums to ten stories, a measure which would impact the requestor’s ongoing project. The requestor would then be forced to
withdraw from the discussion for fear of violating Code Section 25-4-105(1). That course of conduct would skirt the law and invite a host of complications, making it very unlikely the requestor would be able to fully comply with the Ethics in Government Laws. For these reasons the Commission advises the requestor to completely remove himself from the public discussion surrounding the contemplated zoning measures.

Scott Rankin
Executive Director