Ethics in Government, Public Records and Open Meetings

Ethics in Government,Ethics in Government,Public Records and Open MeetingsPublic Records and Open Meetings

MISSISSIPPI ETHICS COMMISSION

2012 Southern SectionA&WMA Annual Conference

Beau Rivage, BiloxiSeptember 14, 2012

OVERVIEW OF THE MISSISSIPPI OVERVIEW OF THE MISSISSIPPI ETHICS COMMISSIONETHICS COMMISSION

The Commission administers and enforces The Commission administers and enforces the Ethics in Government Law bythe Ethics in Government Law by

Keeping Statements of Economic Keeping Statements of Economic Interest;Interest;

Investigating alleged violations of law;Investigating alleged violations of law; Issuing written advisory opinions. Issuing written advisory opinions. The Commission also has limited The Commission also has limited

jurisdiction over thejurisdiction over the Public Records Act andPublic Records Act and Open Meetings ActOpen Meetings Act

MISSISSIPPI ETHICS MISSISSIPPI ETHICS COMMISSIONCOMMISSION

Eight members serve staggered Eight members serve staggered terms. terms.

Members appointed by Governor, Members appointed by Governor, Lieutenant Governor, Speaker of the Lieutenant Governor, Speaker of the House and Chief Justice.House and Chief Justice.

Commission staff supervised by an Commission staff supervised by an executive director who serves at the executive director who serves at the Commission’s will and pleasure.Commission’s will and pleasure.

MISSISSIPPI’S ETHICS IN MISSISSIPPI’S ETHICS IN GOVERNMENT LAWGOVERNMENT LAW

““The legislature declares that elective and public The legislature declares that elective and public office and employment is a public trust and any office and employment is a public trust and any effort to realize personal gain through official effort to realize personal gain through official conduct, other than as provided by law, or as a conduct, other than as provided by law, or as a natural consequence of the employment or natural consequence of the employment or position, is a violation of that trust. Therefore, position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a public servants shall endeavor to pursue a course of conduct which will not raise suspicion course of conduct which will not raise suspicion among the public that they are likely to be among the public that they are likely to be engaged in acts that are in violation of this trust engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the and which will not reflect unfavorably upon the state and local governments.”state and local governments.”

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

Eight Basic ProhibitionsEight Basic Prohibitions Board Member ContractsBoard Member Contracts Use of OfficeUse of Office ContractingContracting Purchasing Goods and ServicesPurchasing Goods and Services Purchasing SecuritiesPurchasing Securities Insider LobbyingInsider Lobbying Post Government EmploymentPost Government Employment Insider InformationInsider Information

Section 109, Section 109, Miss. Constitution of 1890Miss. Constitution of 1890

No public officer or No public officer or member of the member of the legislature shall be legislature shall be

interested, directly or interested, directly or indirectlyindirectly, in any , in any

contractcontract with the state, with the state, or any district, county, or any district, county, city, or town thereof, city, or town thereof,

authorizedauthorized by any law by any law passed or order made passed or order made by any board of which by any board of which he may be or may have he may be or may have been a member, been a member,

during the termduring the term for for which he shall have which he shall have been chosen, been chosen, or within or within one yearone year after the after the expiration of such term.expiration of such term.

Section 109 Section 109 onlyonly applies applies to members of boards to members of boards and the Legislature. and the Legislature.

Notice the prohibition is Notice the prohibition is against an against an interestinterest, not , not against an act.against an act.

There must be some sort There must be some sort of contract. It need not be of contract. It need not be a written contract.a written contract.

The conflict arises when The conflict arises when the the boardboard funds or funds or otherwise authorizes the otherwise authorizes the contract. contract. Even if the Even if the individual member does individual member does not vote, he or she may not vote, he or she may be in violationbe in violation..

The prohibition continues The prohibition continues until a former official has until a former official has been out of office for one been out of office for one year.year.

Advisory OpinionAdvisory Opinion

11-006-E11-006-E The spouse of a legislator The spouse of a legislator may be employed by a state agency. may be employed by a state agency. State employees constitute a large State employees constitute a large class of persons, and no violation of class of persons, and no violation of Section 109 or Section 25-4-105(2) Section 109 or Section 25-4-105(2) should arise from the employment of a should arise from the employment of a legislator’s spouse by a state agency.legislator’s spouse by a state agency.


10-020-E10-020-E The spouse of the chairman The spouse of the chairman of a state government board may not of a state government board may not contract with a state agency when the contract with a state agency when the contract must be approved by the board. contract must be approved by the board. A member of a public board may not A member of a public board may not have an indirect interest in a contract have an indirect interest in a contract authorized by that board, pursuant to authorized by that board, pursuant to Section 109 and Section 25-4-105(2).Section 109 and Section 25-4-105(2).

Advisory OpinionAdvisory Opinion10-106-E10-106-E A business owned by the financially A business owned by the financially independent son of a state commission independent son of a state commission member may be awarded contracts by the member may be awarded contracts by the commission. If the commission member and commission. If the commission member and the son are financially independent, then the the son are financially independent, then the commission member will have no interest in commission member will have no interest in the contracts as prohibited in Section 109 and the contracts as prohibited in Section 109 and Section 25-4-105(2). However, the Section 25-4-105(2). However, the commission member must fully recuse himself commission member must fully recuse himself from awarding contracts and any other action from awarding contracts and any other action which will result in a pecuniary benefit to the which will result in a pecuniary benefit to the son or his business, in compliance with son or his business, in compliance with Section 25-4-105(1).Section 25-4-105(1).

Section 25-4-105(1)Section 25-4-105(1)

No No public servantpublic servant shall shall use his use his official positionofficial position to obtain, or attempt to obtain, or attempt to obtain, to obtain, pecuniary benefitpecuniary benefit for for himself other than that compensation himself other than that compensation provided for by law, or to obtain, or provided for by law, or to obtain, or attempt to obtain, pecuniary benefit attempt to obtain, pecuniary benefit for any for any relativerelative or any or any business with business with which he is associatedwhich he is associated..

Section 25-4-105(1)Section 25-4-105(1) The statute does The statute does notnot require a public servant require a public servant

misusemisuse his or her position. his or her position. To avoid a violation, a public servant must To avoid a violation, a public servant must

totally and completely totally and completely recuserecuse himself or himself or herself from the matter giving rise to the herself from the matter giving rise to the conflict. conflict.

A board member must leave the board meeting A board member must leave the board meeting beforebefore the matter comes up for discussion, may the matter comes up for discussion, may only return only return afterafter the matter is concluded, and the matter is concluded, and must not discuss the matter with anyone. must not discuss the matter with anyone.

An abstention is considered a vote with the An abstention is considered a vote with the majority and is majority and is notnot a recusal. The minutes of a recusal. The minutes of the meeting should accurately reflect the the meeting should accurately reflect the recusal.recusal.

Recusal Recusal does not does not prevent other violations.prevent other violations.

Section 25-4-103(q)Section 25-4-103(q)

““RelativeRelative” is the public servant’s ” is the public servant’s spouse, spouse, child, child, parent,parent, sibling (brothers and sisters) or sibling (brothers and sisters) or spouse of a relative (in-laws).spouse of a relative (in-laws).

Advisory OpinionAdvisory Opinion10-029-E10-029-E An individual may not remain An individual may not remain employed by a state agency after the employed by a state agency after the employee’s spouse becomes the executive employee’s spouse becomes the executive head of the agency. A public servant may head of the agency. A public servant may not use his position to obtain any pecuniary not use his position to obtain any pecuniary benefit for his or her spouse, as prohibited in benefit for his or her spouse, as prohibited in Section 25-4-105(1). Due to the potential for Section 25-4-105(1). Due to the potential for a violation and the policy codified in Section a violation and the policy codified in Section 25-4-101, the employee should resign 25-4-101, the employee should resign before her spouse becomes the executive before her spouse becomes the executive head of the agency.head of the agency.

Section 25-4-103(c)Section 25-4-103(c)‘‘Business with which he is associatedBusiness with which he is associated’ ’

means public servant or his relative is means public servant or his relative is officer, director, owner, partner, employeeofficer, director, owner, partner, employee holder of more than ten percent (10%) of holder of more than ten percent (10%) of

the fair market value or the fair market value or from which he or his relative derives more from which he or his relative derives more

than $2,500 in annual income or than $2,500 in annual income or over which such public servant or his over which such public servant or his

relative exercises control. relative exercises control.

Advisory OpinionAdvisory Opinion10-106-E10-106-E (REPEATED) To comply (REPEATED) To comply with Section 25-4-105(1), a state with Section 25-4-105(1), a state commission member must fully recuse commission member must fully recuse himself from awarding contracts and himself from awarding contracts and any other action which will result in a any other action which will result in a pecuniary benefit to his son or his pecuniary benefit to his son or his son’s business, which is a business son’s business, which is a business with which the commission member is with which the commission member is associated because it is owned by his associated because it is owned by his relative.relative.

Subsection (3)(a) – Subsection (3)(a) – The Contractor ProhibitionThe Contractor Prohibition

No public servant shall: (a) Be a No public servant shall: (a) Be a contractor, subcontractor or vendorcontractor, subcontractor or vendor with the governmental entitywith the governmental entity of of which he is a member, officer, employee which he is a member, officer, employee or agent, other than in his contract of or agent, other than in his contract of employment, employment, or have a material or have a material financial interest in any business financial interest in any business which is a contractor, subcontractor which is a contractor, subcontractor or vendoror vendor with the governmental with the governmental entityentity of which he is a member, officer, of which he is a member, officer, employee or agent.employee or agent.

Subsection (3)(a) – Subsection (3)(a) – The Contractor ProhibitionThe Contractor Prohibition

““The term contractor is generally used The term contractor is generally used in the strict sense of one who in the strict sense of one who contracts to perform a service for contracts to perform a service for another and not in the broad sense of another and not in the broad sense of one who is a party to a contract.” one who is a party to a contract.” Moore, ex rel. City of Aberdeen v. Moore, ex rel. City of Aberdeen v. ByarsByars, 757 So.2d 243, 248 (¶ 15) , 757 So.2d 243, 248 (¶ 15) (Miss. 2000).(Miss. 2000).

Subsection (3)(a) – Subsection (3)(a) – “Material Financial “Material Financial

Interest”Interest”personal and pecuniary interest, direct or indirect, personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually accruing to a public servant or spouse, either individually or in combination with each other. or in combination with each other. Except forExcept for: : 1.1. Ownership of less than 10% in a business with Ownership of less than 10% in a business with

aggregate annual net income to the public servant less aggregate annual net income to the public servant less than $1,000.00;than $1,000.00;

2.2. Ownership of less than 2% in a business with Ownership of less than 2% in a business with aggregate annual net income to the public servant less aggregate annual net income to the public servant less than $5,000.00;than $5,000.00;

3.3. Income as an employee of a relative if neither the Income as an employee of a relative if neither the public servant or relative is an officer, director or public servant or relative is an officer, director or partner and any ownership interest would not be partner and any ownership interest would not be material under subparagraph 1 or 2; ormaterial under subparagraph 1 or 2; or

4.4. Income of the spouse of a public servant when the Income of the spouse of a public servant when the spouse is a contractor, subcontractor or vendor and spouse is a contractor, subcontractor or vendor and the public servant exercises no control, direct or the public servant exercises no control, direct or indirect, over the contract.indirect, over the contract.


10-010-E10-010-E Public servants of a state agency or Public servants of a state agency or their businesses may not contract with the their businesses may not contract with the state agency. Pursuant to Section 25-4-105(3)state agency. Pursuant to Section 25-4-105(3)(a), no “public servant” of state government (a), no “public servant” of state government may be a contractor, subcontractor or vendor may be a contractor, subcontractor or vendor to state government or have a “material to state government or have a “material financial interest” in a “business” which is a financial interest” in a “business” which is a contractor, subcontractor or vendor to state contractor, subcontractor or vendor to state government.government.


11-019-D11-019-D A member of one state board may A member of one state board may have a material financial interest in a business have a material financial interest in a business which does business with a separate state which does business with a separate state agency. Section 25-4-105(3)(a) prohibits a agency. Section 25-4-105(3)(a) prohibits a state official from having a material financial state official from having a material financial interest in a business which is a contractor, interest in a business which is a contractor, subcontractor or vendor to state government. subcontractor or vendor to state government. However, Section 25-4-105(4)(h) provides an However, Section 25-4-105(4)(h) provides an exception which allows a state official to exception which allows a state official to contract with a separate “authority” of state contract with a separate “authority” of state government, such as a separate state agency.government, such as a separate state agency.


09-015-E09-015-E A state agency may purchase from A state agency may purchase from the lowest and best bidder who is also the the lowest and best bidder who is also the spouse of an employee of the state agency. spouse of an employee of the state agency. When the income is that of the public When the income is that of the public servant’s spouse and the public servant servant’s spouse and the public servant exercises no control, direct or indirect, over exercises no control, direct or indirect, over the contract, the public servant has no the contract, the public servant has no material financial interest in the business, and material financial interest in the business, and the purchase will not violate Section 25-4-the purchase will not violate Section 25-4-105(3)(a).105(3)(a).

Subsection (3)(b) – Subsection (3)(b) – The Purchaser ProhibitionThe Purchaser Prohibition

No public servant shall: (b) Be a No public servant shall: (b) Be a purchaser, direct or indirectpurchaser, direct or indirect, at any , at any sale made by him in his official capacity sale made by him in his official capacity or by the governmental entity of or by the governmental entity of which he is an officer or employeewhich he is an officer or employee, , except in respect of the sale of goods or except in respect of the sale of goods or services when provided as public services when provided as public utilities or offered to the general public utilities or offered to the general public on a uniform price schedule.on a uniform price schedule.

Subsection (3)(b) – Subsection (3)(b) – The Purchaser ProhibitionThe Purchaser Prohibition

For example, this subsection prohibits For example, this subsection prohibits a government employee or official a government employee or official from purchasing anything at an from purchasing anything at an auction or other sale conducted on auction or other sale conducted on behalf of his or her governmental behalf of his or her governmental entity.entity.

Subsection (3)(e) – Subsection (3)(e) – Post Government Post Government

EmploymentEmployment No public servant shall: (e) Perform any No public servant shall: (e) Perform any serviceservice for any for any compensationcompensation for any for any person or businessperson or business after terminationafter termination of his office or employment in relation to of his office or employment in relation to any any case, decision, proceeding or case, decision, proceeding or applicationapplication with respect to which he with respect to which he was was directly concerned or in which he directly concerned or in which he personally participatedpersonally participated during the during the period of his service or employment.period of his service or employment.

Subsection (3)(e) – Subsection (3)(e) – Post Government Post Government

EmploymentEmployment Applies Applies afterafter someone leaves someone leaves

government.government. If you worked on a matter while If you worked on a matter while

you were in government, you you were in government, you cannot work on that cannot work on that same mattersame matter in the private sector.in the private sector.

But a former government employee But a former government employee can workcan work for a government for a government contractor on other matters.contractor on other matters.

10-071-E10-071-E A former state agency A former state agency head may be employed by a head may be employed by a contractor to the agency to work contractor to the agency to work in other states but cannot work in in other states but cannot work in Mississippi or with his former Mississippi or with his former agency until the current contract agency until the current contract is no longer in effect, pursuant to is no longer in effect, pursuant to Section 25-4-105(3)(e).Section 25-4-105(3)(e).


08-103-E08-103-E A former employee of a A former employee of a state agency who was directly concerned state agency who was directly concerned with and personally participated in with and personally participated in specific programs for the agency, may specific programs for the agency, may not accept employment with a company not accept employment with a company to perform services within those specific to perform services within those specific programs. A violation of Section 25-4-programs. A violation of Section 25-4-105(3)(e) will occur if the requestor 105(3)(e) will occur if the requestor accepts a position with a consulting firm accepts a position with a consulting firm and performs work on the programs with and performs work on the programs with which he was directly concerned and which he was directly concerned and personally participated.personally participated.


Section 25-4-105(4) – Section 25-4-105(4) – Exceptions to Subsection Exceptions to Subsection

(3)(3) These exceptions These exceptions onlyonly apply to apply to Subsection (3) and Subsection (3) and notnot to any other to any other provisions of law.provisions of law.

Can apply to a government employee Can apply to a government employee but but does not protectdoes not protect a board member a board member from a violation of Section 109 or from a violation of Section 109 or Section 25-4-105(2). The employee Section 25-4-105(2). The employee would still have to would still have to recuserecuse himself or himself or herself from any action which might herself from any action which might otherwise violate Section 25-4-105(1).otherwise violate Section 25-4-105(1).

Section 25-4-105(5) – Section 25-4-105(5) – Insider InformationInsider Information

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

Section 25-4-105(5) – Section 25-4-105(5) – Insider InformationInsider Information

Comes up most often in connection Comes up most often in connection with economic development.with economic development.

Nonpublic information may not be Nonpublic information may not be revealed if it revealed if it mightmight result in a result in a monetary benefit to monetary benefit to anyoneanyone..

Could apply to a former public Could apply to a former public servant.servant.

08-062-E08-062-E Attorneys employed by a Attorneys employed by a state agency or an LLC of which they state agency or an LLC of which they are members may not sell publications are members may not sell publications created by them which contain their created by them which contain their analysis of decisions by the state analysis of decisions by the state agency. Under these specific facts, agency. Under these specific facts, the Commission finds that a violation the Commission finds that a violation of Section 25-4-105(1) or Section 25-4-of Section 25-4-105(1) or Section 25-4-105(5) will inevitably occur if the 105(5) will inevitably occur if the public servant creates and sells the public servant creates and sells the above referenced publications.above referenced publications.


THE STATEMENT OF THE STATEMENT OF ECONOMIC INTERESTECONOMIC INTEREST

Intended to disclose sources Intended to disclose sources of a public servant’s income of a public servant’s income

but not amounts.but not amounts.

Persons Required to File Persons Required to File Elected officials, except members of levee boards Elected officials, except members of levee boards

and election commissioners;and election commissioners; Members of all public school boards, whether Members of all public school boards, whether

elected or appointed;elected or appointed; Candidates for elected office and persons appointed Candidates for elected office and persons appointed

to fill a vacancy in an elected office;to fill a vacancy in an elected office; Executive directors or heads of state agencies and Executive directors or heads of state agencies and

the presidents and trustees of all colleges and the presidents and trustees of all colleges and universities;universities;

Members of any state board, commission, or agency, Members of any state board, commission, or agency, except advisory boards or commissions;except advisory boards or commissions;

Board members and executive directors of local Board members and executive directors of local economic development entities economic development entities and and airport airport authoritiesauthorities..

Filing DatesFiling Dates

Incumbent office holders must file on Incumbent office holders must file on or before May 1 of each year.or before May 1 of each year.

Candidates for office in primary, Candidates for office in primary, special, or general elections must file special, or general elections must file within 15 days after qualifying.within 15 days after qualifying.

Appointees to offices required to file Appointees to offices required to file must submit a disclosure form within must submit a disclosure form within 30 days of their appointment.30 days of their appointment.

ContentsContents Discloses the sources of an individual’s Discloses the sources of an individual’s

income, not specific amounts.income, not specific amounts. Covers previous calendar year.Covers previous calendar year. Requires listing the name and address Requires listing the name and address

of all businesses in which filer or of all businesses in which filer or household member held a position or household member held a position or interest or received income.interest or received income.

Must name public bodies from which Must name public bodies from which filer or household members received filer or household members received income.income.

Must be filed online at the Must be filed online at the Commission’s website.Commission’s website.

Online Filing: Create an Online Filing: Create an AccountAccount

THE COMPLAINT THE COMPLAINT PROCEDUREPROCEDURE

Investigation and Investigation and Enforcement of Ethics in Enforcement of Ethics in Government ViolationsGovernment Violations

Complaint ProcessComplaint Process

Sworn complaint must be filed alleging a Sworn complaint must be filed alleging a violation of law by a public servant before an violation of law by a public servant before an investigation can be conducted.investigation can be conducted.

If investigation is authorized by Commission, If investigation is authorized by Commission, it is conducted before respondent is notified.it is conducted before respondent is notified.

Respondent has 30 days to file a response.Respondent has 30 days to file a response. All investigative proceedings and records All investigative proceedings and records

are strictly confidential, and breach of are strictly confidential, and breach of confidentiality constitutes a crime. confidentiality constitutes a crime.

Enforcement Enforcement Commission will hold hearings to Commission will hold hearings to

determine guilt and to impose penalties.determine guilt and to impose penalties. Appeals go to Hinds County Circuit Court.Appeals go to Hinds County Circuit Court. Commission will impose fines up to Commission will impose fines up to

$10,000, censures and equitable $10,000, censures and equitable remedies on all public servants. remedies on all public servants.

Commission can only Commission can only recommendrecommend that that Hinds County Circuit Court remove an Hinds County Circuit Court remove an official or suspend or demote an official or suspend or demote an employeeemployee

ADVISORY OPINIONSADVISORY OPINIONS

““An ounce of prevention is An ounce of prevention is worth a pound of cure.”worth a pound of cure.”

ADVISORY OPINIONSADVISORY OPINIONS Commission issues anonymous advisory Commission issues anonymous advisory

opinions every month to public servants who opinions every month to public servants who need advice about complying with the Ethics need advice about complying with the Ethics Law.Law.

Opinion must be requested in writing by a Opinion must be requested in writing by a public servant or candidate for elected office. public servant or candidate for elected office.

If you get an opinion from the Ethics If you get an opinion from the Ethics Commission, and you follow it, you are Commission, and you follow it, you are immune from liability under the Ethics Law.immune from liability under the Ethics Law.

Commission’s staff gives informal guidance Commission’s staff gives informal guidance based on past opinions, but the only way to based on past opinions, but the only way to be protected from liability is to obtain an be protected from liability is to obtain an official written opinion. official written opinion.

PUBLIC RECORDS ACTPUBLIC RECORDS ACT

PUBLIC RECORDS ACTPUBLIC RECORDS ACT All documents and other records, including All documents and other records, including

electronic records, related to government electronic records, related to government business are public records.business are public records.

Everyone has the right to inspect or copy.Everyone has the right to inspect or copy. Government can recoup actual cost of Government can recoup actual cost of

retrieving and/or copying public records.retrieving and/or copying public records. Many records are exempted.Many records are exempted. If record contains exempt material, If record contains exempt material,

government may have to redact and copy.government may have to redact and copy.

PROCEDUREPROCEDURESection 25-61-13 sets forth procedure for Section 25-61-13 sets forth procedure for

resolving disputes arising under the Public resolving disputes arising under the Public Records Act. Records Act.

Any person may request an opinion from the Any person may request an opinion from the Ethics Commission about whether a public Ethics Commission about whether a public body has violated the Public Records Act by body has violated the Public Records Act by denying a request for records. denying a request for records.

A copy of the opinion request will be sent to A copy of the opinion request will be sent to the public body, which can respond. the public body, which can respond.

The Commission can issue a nonbinding The Commission can issue a nonbinding opinion. opinion.

If the dispute is not resolved voluntarily, then If the dispute is not resolved voluntarily, then the person requesting the opinion must file a the person requesting the opinion must file a lawsuit in chancery court to compel lawsuit in chancery court to compel production of the public records.production of the public records.

PUBLIC RECORDS ACTPUBLIC RECORDS ACTResponse and CostsResponse and Costs

Public body must respond to public records Public body must respond to public records request within 1 working day, if no policy is request within 1 working day, if no policy is in place.in place.

Public body may adopt a policy allowing up Public body may adopt a policy allowing up to 7 working days to respond. (Can extend to 7 working days to respond. (Can extend to 14 days if good cause given in writing.)to 14 days if good cause given in writing.)

Denial of request must be in writing.Denial of request must be in writing. Public body may require prepayment of Public body may require prepayment of

reasonably calculated actual costs of reasonably calculated actual costs of searching, reviewing, redacting, searching, reviewing, redacting, duplicating and mailing public records.duplicating and mailing public records.

PUBLIC RECORDS ACTPUBLIC RECORDS ACTConfidential Business Info.Confidential Business Info.

Public records furnished by third parties Public records furnished by third parties which contain trade secrets or which contain trade secrets or confidential commercial or financial confidential commercial or financial information are exempt from disclosure.information are exempt from disclosure.

Public body must give notice to third Public body must give notice to third party which must have reasonable time party which must have reasonable time to obtain protective order.to obtain protective order.

If protective order is not obtained by If protective order is not obtained by third party, then public body must third party, then public body must produce.produce.

PUBLIC RECORDS ACTPUBLIC RECORDS ACTOther ExemptionsOther Exemptions

Appraisal records exempt from access, see Appraisal records exempt from access, see § 31-1-27.§ 31-1-27.

Attorney work product exemption, see § Attorney work product exemption, see § 25-1-102.25-1-102.

Environmental self-evaluation Environmental self-evaluation reports, § 49-2-71.reports, § 49-2-71.

Individual tax records in possession of Individual tax records in possession of public body, see § 27-3-77.public body, see § 27-3-77.

Personnel files exempt from examination, Personnel files exempt from examination, see § 25-1-100.see § 25-1-100.

Workers' compensation, access to records, Workers' compensation, access to records, see § 71-3-66.see § 71-3-66.

Public Records OpinionsPublic Records OpinionsR-11-001: Tharp vs. Jackson Public SchoolsR-11-001: Tharp vs. Jackson Public SchoolsUnder the Public Records Act, an individual has no more right Under the Public Records Act, an individual has no more right to public records pertaining to him or her than any other to public records pertaining to him or her than any other member of the public would have. While the individual may member of the public would have. While the individual may certainly have a right to obtain the record in an administrative certainly have a right to obtain the record in an administrative or court proceeding, the Public Records Act gives the same or court proceeding, the Public Records Act gives the same right of access to all members of the public, regardless of their right of access to all members of the public, regardless of their personal connection to the record.personal connection to the record.

R-10-003: Hendrix vs. PERSR-10-003: Hendrix vs. PERSA requestor must request an identifiable record or class of A requestor must request an identifiable record or class of records before a public body can comply with the request. records before a public body can comply with the request. Requests for information or questions are not proper requests Requests for information or questions are not proper requests for identifiable public records.for identifiable public records.

R-09-007: Garner vs. Office of the State TreasurerR-09-007: Garner vs. Office of the State TreasurerState agency fulfilled its obligation to provide “reasonable State agency fulfilled its obligation to provide “reasonable access” to public records by posting a searchable electronic access” to public records by posting a searchable electronic version of public records on the agency’s web site.version of public records on the agency’s web site.

Model Public Records Model Public Records RulesRules

Nonbinding unless you adopt themNonbinding unless you adopt them Designed for use by all state and Designed for use by all state and

local agencieslocal agencies Can be modified to suit your needsCan be modified to suit your needs Provide guidance on questions which Provide guidance on questions which

are not answered in the law and are not answered in the law and have not been addressed by courtshave not been addressed by courts

Posted on Ethics Commission web Posted on Ethics Commission web sitesite

OPEN MEETINGS ACTOPEN MEETINGS ACT

OPEN MEETINGSOPEN MEETINGSEnforcementEnforcement

Complaint is filed with Commission. Complaint is filed with Commission. Complaint is sent to public body, which can Complaint is sent to public body, which can respond. Commission may dismiss complaint, respond. Commission may dismiss complaint, make preliminary finding or hold a hearing.make preliminary finding or hold a hearing.

Ethics Commission may order public body to Ethics Commission may order public body to comply with law.comply with law.

Ethics Commission may impose $500 fine for Ethics Commission may impose $500 fine for first offense, $1,000 for subsequent offense.first offense, $1,000 for subsequent offense.

Ethics Commission can mediate disputes.Ethics Commission can mediate disputes. Either party may appeal Either party may appeal de novode novo or enforce or enforce

Ethics Commission order in local chancery Ethics Commission order in local chancery court.court.

““Public body” is any board, commission, Public body” is any board, commission, authority, council, department agency, authority, council, department agency, bureau or other entity or committee bureau or other entity or committee thereof of the state, political subdivision thereof of the state, political subdivision or municipality.or municipality.

““Meeting” is any gathering of a quorum Meeting” is any gathering of a quorum of the public body, whether in person or of the public body, whether in person or by phone, to discuss a matter under the by phone, to discuss a matter under the authority of the public body.authority of the public body.

OPEN MEETINGS ACTOPEN MEETINGS ACTDefinitionsDefinitions

Case No. M-09-007Case No. M-09-007Hall vs. Miss. Trans. Commn.Hall vs. Miss. Trans. Commn.

When a quorum of a public body When a quorum of a public body assembles and discusses a matter assembles and discusses a matter under their jurisdiction, a “meeting” under their jurisdiction, a “meeting” has taken place.has taken place.

Does not matter that they took no Does not matter that they took no action.action.

Must provide notice and take Must provide notice and take minutes.minutes.

Public meetings must be open to public.Public meetings must be open to public. Executive session must follow specific Executive session must follow specific

procedure and only for 12 reasons.procedure and only for 12 reasons. Notice of meeting must be given, and Notice of meeting must be given, and

minutes must be kept.minutes must be kept. Social gatherings are not “meetings” Social gatherings are not “meetings”

unless official business is discussed.unless official business is discussed. Act never requires executive session.Act never requires executive session.

OPEN MEETINGS ACTOPEN MEETINGS ACTThe BasicsThe Basics

Case No. M-10-007Case No. M-10-007Townes vs. Leflore Co. Sch. Bd.Townes vs. Leflore Co. Sch. Bd.

Public body may make and enforce Public body may make and enforce reasonable rules for conduct of reasonable rules for conduct of persons attending meetings.persons attending meetings.

Public body is not required to allow Public body is not required to allow members of the public to speak at members of the public to speak at meetings.meetings.

Regular meetings of some public Regular meetings of some public bodies are set in statute.bodies are set in statute.

For recess, adjourned, interim or For recess, adjourned, interim or special meetings, notice must be special meetings, notice must be posted in building where meeting is posted in building where meeting is held within one hour of calling the held within one hour of calling the meeting.meeting.

Copy of the notice must be placed in Copy of the notice must be placed in the minutes.the minutes.

OPEN MEETINGS ACTOPEN MEETINGS ACTNoticeNotice

Case No. M-09-008Case No. M-09-008Goodman vs. Lena Bd. of Ald.Goodman vs. Lena Bd. of Ald.

Public notice must be posted within one Public notice must be posted within one hour of calling a meeting other than a hour of calling a meeting other than a regularly scheduled meeting.regularly scheduled meeting.

Notice must be posted in a prominent Notice must be posted in a prominent place in building where board meets.place in building where board meets.

Notice must be included in the minutes Notice must be included in the minutes of that meeting.of that meeting.

Minutes must be kept for all Minutes must be kept for all meetings, whether in open or meetings, whether in open or executive session.executive session.

Minutes must be recorded within Minutes must be recorded within 30 days after meeting.30 days after meeting.

Minutes must be available for Minutes must be available for public inspection.public inspection.

OPEN MEETINGS ACTOPEN MEETINGS ACTMinutesMinutes

Minutes must show:Minutes must show: Members present and absent;Members present and absent; Date, time and place of meeting;Date, time and place of meeting; Accurate recording of any final Accurate recording of any final

actions;actions; Record, by individual member, of all Record, by individual member, of all

votes taken;votes taken; Any other information requested by Any other information requested by

the public body.the public body.

OPEN MEETINGS ACTOPEN MEETINGS ACTMinutesMinutes

All members can participate by phone All members can participate by phone or video conference.or video conference.

They can be in different locations, so They can be in different locations, so long as one location is open to the long as one location is open to the public.public.

Notice of telephonic meetings must be Notice of telephonic meetings must be given 5 days in advance, except in given 5 days in advance, except in emergency, and must include the emergency, and must include the public location.public location.

OPEN MEETINGS ACTOPEN MEETINGS ACTTelephonic MeetingsTelephonic Meetings

Meeting must be suspended if phone Meeting must be suspended if phone service is interrupted.service is interrupted.

Roll call votes are required.Roll call votes are required. Meeting must be recorded by audio Meeting must be recorded by audio

(when using telephone) or video (when using telephone) or video (when using video conference), and (when using video conference), and recording must be kept 3 years.recording must be kept 3 years.

OPEN MEETINGS ACTOPEN MEETINGS ACTTelephonic MeetingsTelephonic Meetings

Case No. M-10-005Case No. M-10-005Madison vs. Aberdeen Bd. of Madison vs. Aberdeen Bd. of

Ald.Ald. Law requires public bodies to take all Law requires public bodies to take all

reasonable means within their powers reasonable means within their powers and resources to ensure all members of and resources to ensure all members of the public who attend are able to “see the public who attend are able to “see and hear everything that is going on” at and hear everything that is going on” at an open public meeting.an open public meeting.

Law does not contain any specific Law does not contain any specific requirements regarding acoustics or requirements regarding acoustics or amplification.amplification.

By majority vote, public body may enter closed session to discuss whether to declare executive session.A 3/5ths vote of the public body is required to declare executive session.Must return to open session and announce the reason for entering executive session. That reason and individual votes must be recorded in minutes.No other topic can be discussed in executive session.

OPEN MEETINGS ACTOPEN MEETINGS ACTExecutive Session Executive Session

ProcedureProcedure

Case No. M-10-002Case No. M-10-002Gates vs. New Augusta Bd. of Gates vs. New Augusta Bd. of

Ald.Ald. Board must make “closed Board must make “closed

determination” before voting on determination” before voting on executive session.executive session.

Minutes must record votes by Minutes must record votes by “individual member.”“individual member.”

When vote is not unanimous, When vote is not unanimous, minutes must name each individual minutes must name each individual member and list how each voted.member and list how each voted.

Pursuant to Section 25-41-7, there are only twelve reasons for holding an executive session:(a) personnel matters(b) litigation (c) security(d) investigations(e) The Legislature may enter executive session for any reason.(f) cases of extraordinary emergency(g) prospective purchase, sale or leasing of lands(h) school board discussions about individual student’s problems(i) preparation of professional licensing exams(j) location, relocation or expansion of a business(k) budget matter which may lead to termination of employee(l) certain PERS board investments

OPEN MEETINGS ACTOPEN MEETINGS ACTExecutive Session ReasonsExecutive Session Reasons

Case No. M-09-005Case No. M-09-005Cooper vs. Adams Co. Bd. of Cooper vs. Adams Co. Bd. of

Supv.Supv. ““Personnel matters” exception does not Personnel matters” exception does not

apply to issue of funding agency simply apply to issue of funding agency simply because board members disapprove of because board members disapprove of agency employees.agency employees.

Board may not simply announce “personnel” Board may not simply announce “personnel” as reason for entering executive session.as reason for entering executive session.

Board must announce which exception Board must announce which exception applies to each individual matter discussed in applies to each individual matter discussed in executive session.executive session.

Case No. M-09-009Case No. M-09-009Hood vs. Belzoni Bd. of Ald.Hood vs. Belzoni Bd. of Ald.

Board may never discuss pay raises for Board may never discuss pay raises for themselves in executive session as themselves in executive session as elected officials are not “personnel.”elected officials are not “personnel.”

Board must publicly state a meaningful Board must publicly state a meaningful reason with sufficient specificity before reason with sufficient specificity before entering executive session.entering executive session.

Reason for executive session must be Reason for executive session must be recorded in the minutes.recorded in the minutes.

Contact UsContact Us

Mississippi Ethics CommissionMississippi Ethics CommissionPost Office Box 22746Post Office Box 22746660 North Street, Suite 100-C660 North Street, Suite 100-CJackson, Mississippi 39225-2746Jackson, Mississippi 39225-2746Phone: 601-359-1285Phone: 601-359-1285Fax: 601-359-1292Fax: 601-359-1292www.ethics.state.ms.uswww.ethics.state.ms.usinfo@ethics.state.ms.us [email protected]

Ethics in Government, Public Records and Open Meetings

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