Ethics, Open Meetings & Public Records

1. MISSISSIPPI ETHICS COMMISSION MISSISSIPPI ETHICS COMMISSION Mississippi Municipal League Certified Municipal Officials Winter Conference Hilton Hotel, Jackson January 12, 2016 Ethics, Open Meetings & Public Records

2. OVERVIEW OF THE MISSISSIPPI ETHICS COMMISSION The Commission administers and enforces the Ethics in Government Law by • Keeping Statements of Economic Interest; • Investigating alleged violations of law; • Issuing written advisory opinions. The Commission also enforces the • Open Meetings Act and • Public Records Act

3. MISSISSIPPI’S ETHICS IN GOVERNMENT LAW “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.” Section 25-4-101, Miss. Code of 1972

4. Eight Basic Prohibitions • Board Member Contracts • Use of Office • Contracting • Purchasing Goods and Services • Purchasing Securities • Insider Lobbying • Post Government Employment • Insider Information

5. 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. Section 109 only applies to members of boards and the Legislature. Notice the prohibition is against an interest, not against an act. There must be some sort of contract. It need not be a written contract. The conflict arises when the board funds or otherwise authorizes the contract. Even if the individual member does not vote, he or she may be in violation. The prohibition continues until a former official has been out of office for one year. Section 109, Miss. Constitution of 1890

6. Advisory Opinion 15-037-E A town may not make purchases from a local vendor which has an alderman as an employee. Moreover, the prohibitions in Section 109 and Section 25-4-105(2) will prohibit such purchases for one year after the alderman leaves office.

7. Advisory Opinion 15-031-E An alderman may not sell insurance to a city contractor. The alderman would obtain a prohibited, indirect interest in the contract between the city and the contractor in violation of Section 109 and Section 25-4-105(2).

8. Advisory Opinion 15-061-E A mayor and members of the board of aldermen may serve without compensation on the board of directors of a chamber of commerce which receives funding from the city. Because the directors are uncompensated, no violation of Section 109 or Section 25-4-105(2) should arise, but the public officials must recuse themselves from any action by the city which will result in a pecuniary benefit to the chamber, in compliance with Section 25-4-105(1).

9. Advisory Opinion 15-038-E An alderman may have an interest in a company which donates land to the city without violating Section 109 or Section 25-4-105(2). The alderman’s recusal from any matter coming before the board of aldermen concerning the donation and any resulting project related to the donation should prevent a violation of Section 25-4-105(1).

10. Section 25-4-105(1) (1) No public servant shall use his official position to obtain, or attempt to obtain, pecuniary benefit for himself other than that compensation provided for by law, or to obtain, or attempt to obtain, pecuniary benefit for any relative or any business with which he is associated.

11. Section 25-4-105(1) • The statute does not require a public servant misuse his or her position. • To avoid a violation, a public servant must totally and completely recuse himself or herself from the matter giving rise to the conflict. • A board member must leave the board meeting before the matter comes up for discussion, may only return after the matter is concluded, and must not discuss the matter with anyone. • An abstention is considered a vote with the majority and is not a recusal. The minutes of the meeting should accurately reflect the recusal. • Recusal does not prevent other violations.

12. Section 25-4-105(1) “Relative” is the public servant’s • spouse, • child, • parent, • sibling (brothers and sisters) or • spouse of a relative (in-laws).

13. Advisory Opinion 15-016-E A city may hire an applicant who would be supervised by his or her step father-in-law. While a city employee must not use his or her position to obtain any pecuniary benefit for a relative, as proscribed in Section 25-4-105(1), the term “relative” does not include a step father-in-law or step child.

14. Section 25-4-105(1) ‘Business with which he is associated’ means public servant or his relative is • officer, director, owner, partner, employee • holder of more than ten percent (10%) of the fair market value or • from which he or his relative derives more than $2,500 in annual income or • over which such public servant or his relative exercises control.

15. Advisory Opinion 15-011-E A city employee may be a member of an LLC with another individual who owns a separate company which contracts with the city. As long as the city employee has no interest in the separate company which contracts with the city, the city employee will not violate Section 25-4-105(1) or (3)(a).

16. Subsection (3)(a) – The Contractor Prohibition (3) No public servant shall: (a) Be a contractor, subcontractor or vendorwith 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 vendorwith the governmental entity of which he is a member, officer, employee or agent.

17. Advisory Opinion 13-061-E Alderman may also be employed by the county. City and county are separate governmental entities, and no violation of Section 25-4-105(3)(a) should result. However, an interlocal agreement funding or otherwise authorizing the alderman’s contract of employment with the county could violate Section 109.

18. Subsection (3)(b) – The Purchaser Prohibition (3) No public servant shall: (b) Be a purchaser, direct or indirect, at any sale made by him in his official capacity or by the governmental entity of which he is an officer or employee, except in respect of the sale of goods or services when provided as public utilities or offered to the general public on a uniform price schedule.

19. Subsection (3)(b) – The Purchaser Prohibition For example, this subsection prohibits a government employee or official from purchasing anything at an auction or other sale conducted on behalf of his or her governmental entity.

20. Advisory Opinion 13-075-E Due to the appearance of impropriety that could arise in contravention to Section 25-4-101, Miss. Code of 1972, and the potential for a violation of Section 25-4-105(3)(b) and (5), a public servant of the county should not contract with a company to submit bids on behalf of the company at the tax sale conducted in his or her own county.

21. Subsection (3)(e) – Post Government Employment (3) No public servant shall: (e) Perform any service for any compensation for any person or businessafter termination of his office or employment in relation to any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated during the period of his service or employment.

22. Advisory Opinion 14-071-E A former city employee may work for an accounting firm on a new contract with the city because the firm did not contract with the city while the individual was a city employee. Therefore, no violation of Section 25-4-105(3)(e) should arise.

23. Subsection (3)(e) – Post Government Employment • Applies after someone leaves government. • If you worked on a matter while you were in government, you cannot work on that same matter in the private sector. • But a former government employee can work for a government contractor on other matters.

24. Section 25-4-105(4) – Exceptions to Subsection (3) • These exceptions only apply to Subsection (3) and not to any other provisions of law. • Can apply to a government employee but does not protect a board member from a violation of Section 109 or Section 25-4-105(2). The employee would still have to recuse himself or herself from any action which might otherwise violate Section 25-4-105(1).

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

26. Section 25-4-105(5) – Insider Information • Comes up most often in connection with economic development. • Nonpublic information may not be revealed if it might result in a monetary benefit to anyone. • Could apply to a former public servant.

27. THE COMPLAINT PROCEDURE Investigation and Enforcement of Ethics in Government Violations

28. Complaint Process • Sworn complaint must be filed alleging a violation of law by a public servant before an investigation can be conducted. • If investigation is authorized by Commission, it is conducted before respondent is notified. • Respondent has 30 days to file a response. • All investigative proceedings and records are strictly confidential, and breach of confidentiality constitutes a crime.

29. Enforcement • Commission will hold hearings to determine guilt and to impose penalties. • Appeals go to Hinds County Circuit Court. • Commission will impose fines up to $10,000, censures and equitable remedies on all public servants. • Commission can recommend that Hinds County Circuit Court remove an official or suspend or demote an employee

30. ADVISORY OPINIONS • Commission issues anonymous advisory opinions every month to public servants who need advice about complying with the Ethics Law. • Opinion must be requested in writing by a public servant or candidate for elected office. • If you get an opinion from the Ethics Commission, and you follow it, you are immune from liability under the Ethics Law. • Commission’s staff gives informal guidance based on past opinions, but the only way to be protected from liability is to obtain an official written opinion.

31. THE STATEMENT OF ECONOMIC INTEREST Intended to disclose sources of a public servant’s income but not amounts.

32. Persons Required to File • Elected officials, except members of levee boards and election commissioners; • Members of all public school boards, whether elected or appointed; • Candidates for elected office and persons appointed to fill a vacancy in an elected office; • Executive directors or heads of state agencies and the presidents and trustees of all colleges and universities; • Members of any state board, commission, or agency, except advisory boards or commissions; • Board members and executive directors of local economic development entities and airport authorities.

33. PUBLIC RECORDS ACT

34. PUBLIC RECORDS ACT • All documents and other records, including electronic records, related to government business are public records. • Everyone has the right to inspect or copy. • Government can recoup actual cost of retrieving and/or copying public records. • Many records are exempted. • If record contains exempt material, government may have to redact and copy.

35. Text Msgs. - Op. No. R-13-023 • Text messages concerning city business sent by the mayor in his role as chief executive officer of the city qualify as public records, even though sent from the mayor’s personal phone. • Any text message used by a government official “in the conduct, transaction or performance of any business, transaction, work, duty or function of [the government]” is a public record, regardless of where the record is stored.

36. Text Msgs. - Op. No. R-13-023 • Purely personal text messages having absolutely no relation to government business are not public records. • Public record text messages might have to be retained by the public body. • MDAH Local Government Records Office says “electronic records are subject to the same retention guidelines as paper records and existing retention schedules apply to all records regardless of format unless noted otherwise in the approved retention period.”

37. Public Records OpinionsElectronic Records R-13-008: Miss. Crime Crier v. Holmes-Humphreys Regional Correctional Facility • A public body fulfills its obligation to provide public records when it posts a publicly available and searchable version of the records on the Internet. R-09-007: Garner v. Office of the State Treasurer • State agency fulfilled its obligation to provide “reasonable access” to public records by posting a searchable electronic version of public records on the agency’s web site.

38. PUBLIC RECORDS ACTResponse and Costs • Public body must respond to public records request within 1 working day, if no policy is in place. • Public body may adopt a policy allowing up to 7 working days to respond. • Denial of request must be in writing. • Public body may require prepayment of reasonably calculated actual costs of searching, reviewing, redacting, duplicating and mailing public records.

39. Public Records OpinionsCosts for Responding Harrison Co. Dev. Commn. v. Kinney, 920 So.2d 497 (Miss. App. 2006). • Any attempt by a public body to impose fees exceeding actual costs reasonably incurred constitutes a willful and knowing denial of access to public records that warrants the imposition of a civil penalty and the award of attorney fees and costs. R-14-017: Rogers v. Rankin Co. Sch. Dist. • School district may recover as costs reasonable fees incurred by district for attorney’s review of detailed legal bills for privileged or confidential information.

40. PUBLIC RECORDS ACTConfidential Business Info. • Public records furnished by third parties which contain trade secrets or confidential commercial or financial information are exempt from disclosure. • Public body must give notice to third party which must have reasonable time to obtain protective order. • If protective order is not obtained by third party, then public body must produce.

41. PUBLIC RECORDS ACTSome Statutory Exemptions • Academic records, § 37-11-51. • Attorney work product, § 25-1-102. • Individual tax records, § 27-3-77. • Licensure application and examination, § 73-52-1. • Personnel files, § 25-1-100. • Trade secrets, proprietary commercial and financial information, § 79-23-1. • Workers' compensation records, § 71-3-66.

42. Public Records OpinionsCommon Exemptions: Personnel Records R-14-025: O’Bryant v. Moss Point • Personnel records cannot be produced unless the public body obtains consent from the employee to whom the records pertain. • A public body is not required to give an employee a copy of his or her own personnel records. R-14-009: Greenwood Commonwealth v. Leflore Co. Sch. Dist./State Dept. of Ed. • Letters of nonrenewal are exempt personnel records. • A list of employees who received letters of nonrenewal may also be exempt.

43. Public Records OpinionsCommon Exemptions: Investigative Reports • R-10-005: Sacharin v. Horn Lake Police Department When a police “investigative report” contains information which should have been contained in an “incident report,” the exempt information must be redacted, and the redacted report must be produced. • R-10-008: Webster v. Southaven Police Dept. Police department policy and procedure manuals are generally not exempt “investigative reports.” Internal affairs complaints may be exempted “personnel records.” • R-10-020: Swan v. Hattiesburg Police Dept. An incident report must contain a narrative description of the incident and must not contain investigative or victim information which could jeopardize investigations and prosecutions and may subject victims of crime to unwarranted public embarrassment or danger.

44. Public Records OpinionsCommon Exemptions: Attorney-Client Privilege and Attorney Work Product R-13-002: Butts v. Tupelo School District While the district may be required to produce documents that simply reflect the total amount billed by an attorney, the District cannot be required to disclose information in detailed invoices from an attorney that contain attorney-client privileged communications or information subject to the attorney work product doctrine.

45. Model Public Records Rules • Nonbinding unless you adopt them • Designed for use by all state and local agencies • Can be modified to suit your needs • Provide guidance on questions which are not answered in the law and have not been addressed by courts • Posted on Ethics Commission web site

46. OPEN MEETINGS ACT

47. OPEN MEETINGSEnforcement • Complaint is filed with Commission. Complaint is sent to public body, which can respond. Commission may dismiss complaint, make preliminary finding or hold a hearing. • Ethics Commission may order public body to comply with law. • Ethics Commission may impose $500 fine for first offense, $1,000 for subsequent offense. • Ethics Commission can mediate disputes. • Either party may appeal de novo or enforce Ethics Commission order in local chancery court.

48. OPEN MEETINGS ACTThe Basics • Public meetings must be open to public. • Executive session must follow specific procedure and only for 12 reasons. • Notice of meeting must be given, and minutes must be kept. • Social gatherings are not “meetings” unless official business is discussed. • Act never requires executive session.

49. WHAT IS A MEETING?

50. OPEN MEETINGS ACTDefinitions • “Public body” is any board, commission, authority, council, department agency, bureau or other entity or committee thereof of the state, political subdivision or municipality. • “Meeting” is any gathering of a quorum of the public body, whether in person or by phone, to discuss a matter under the authority of the public body.