The Open Meetings Act

1. MISSISSIPPI ETHICS COMMISSION MISSISSIPPI ETHICS COMMISSION Miss. Association of Supervisors Winter Conference Hilton Hotel, Jackson January 7, 2016 The Open Meetings Act

2. Primary Areas of Jurisdiction for the Ethics Commission Ethics in Government Law Public Records Act Open Meetings Act

3. OPEN MEETINGS ACT

4. OPEN MEETINGS ACT “It being essential to the fundamental philosophy of the American constitutional form of representative government and to the maintenance of a democratic society that public business be performed in an open and public manner, and that citizens be advised of and be aware of the performance of public officials and the deliberations and decisions that go into the making of public policy, it is hereby declared to be the policy of the State of Mississippi that the formation and determination of public policy is public business and shall be conducted at open meetings except as otherwise provided herein.” Section 25-41-1, Miss. Code of 1972

5. OPEN MEETINGS COMPLAINTS • 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 or enforce Ethics Commission order in local chancery court.

6. 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.

7. The Ethics Commission does NOT have jurisdiction over Title 19, Chapter 3, Miss. Code of 1972, which provides specific rules for meetings of boards of supervisors and supplements the Open Meetings Act.

8. WHAT IS A MEETING?

9. 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.

10. Case No. M-14-001; Williams vs. Lauderdale Co. Bd. Supv. • Deliberations of a quorum must take place in a public meeting. • When the board splits into separate groups of 2 each and discusses the same matter of county business with the same consultant, a quorum is deliberating, and a “meeting” has occurred.

11. Case No. M-12-010Jones v. Yazoo City Bd. • Mayor telephoned a quorum of the board to discuss a matter of city business. • Does not matter that he called each board member separately. • The phone conversations constitute an illegal meeting without notice or minutes. • NOT a violation for mayor or individual board members to discuss city business, as long as the conversations do not encompass a quorum discussing same subject.

12. Case No. M-09-007Hall vs. Miss. Trans. Commn. • When a quorum of a public body assembles and discusses a matter under their jurisdiction, a “meeting” has taken place. • Does not matter that they took no action. • Must provide notice and take minutes.

13. Case No. M-10-001Mason vs. Aberdeen Bd. of Ald. • A chance or impromptu gathering of board members is not necessarily a “meeting.” A public board should be available for social functions with charities, industries and businesses, at which no action is taken and their only function is to listen, without being subjected to the Act. Therefore, a function attended by a public board, whether informal or impromptu, is a meeting within the meaning of the Act only when there is to occur “deliberative stages of the decision-making process that lead to formation and determination of public policy.” Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 123 (Miss.1989).

14. Case No. M-12-020McGovern vs. Starkville • Retreats conducted by the Board of Aldermen are meetings subject to the Open Meetings Act • Even if no official action is taken at a meeting, minutes must be kept • Committees established by the board to conduct business of the city are subject to the Open Meetings Act

15. EXCLUDING THE PUBLIC: EXECUTIVE SESSION

16. Executive Session Procedure: Case No. M-12-002; Hood v. Belzoni 1. The meeting must begin as an Open Meeting. Miss. Code Ann. § 25-41-7(1). 2. A member must make a motion in an Open Meeting for the meeting to be closed to determine whether or not the Board should declare an executive session. The statute does not require a second to this motion, but the vote on this motion is taken in Open Meeting. If a majority votes to close the meeting to make a determination on the question of an executive session, the meeting is closed for this purpose. Miss. Code Ann. § 25-41-7(2).

17. Executive Session Procedure (continued) 3. No other business during this closed interim shall be considered until a vote has been taken on whether or not to declare an executive session. Miss. Code Ann. § 25-41-7(2). In order to go into executive session, a majority of three-fifths of those present must vote in favor of it. Miss. Code Ann. § 25-41-7(1). 4. The Board must then state in Open Meeting the reason for going into executive session, and this reason and total vote thereon must thereafter be recorded on the minutes of the meeting. Miss. Code Ann. § 25-41-7(3), (5). 5. The vote to go into executive session is applicable only to that particular meeting on that particular day. Miss. Code Ann. § 25-41-7(6).

18. A board which only announces “litigation” or “personnel matters” for going into executive session has said nothing. It might as well have stated to the audience, “Ladies and gentlemen, we are going into executive session,” and stopped there. The Act requires that a board cannot use its statutory authority to go into executive session upon certain matters as a device to circumvent the very purposes for which it is under the Open Meetings Act. The purpose of the Act is that the business conducted at all meetings of public boards be wide open. --Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 113-114 (Miss.1989).

19. Executive Session Reasons Executive session may be held for 12 reasons only: (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

20. Case Nos. M-12-005 & M-12-006Harding vs. City of Bay St. Louis • “Personnel matters” exception does not apply to the job performance of an independent contractor to the government: “Personnel Matters” are restricted to matters dealing with employees hired and supervised by the board, not those employees of some other [public] official, and not other [public] officials themselves. . . . Moreover, an independent contractor such as an accountant, lawyer, or architect is not an employee of the board, and would not come under “personnel.” --Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 124 (Miss.1989).

21. Case No. M-09-005Cooper vs. Adams Co. Bd. of Supv. • “Personnel matters” exception does not apply to issue of funding agency simply because board members disapprove of agency employees. • Board may not simply announce “personnel” as reason for entering executive session. • Board must announce which exception applies to each individual matter discussed in executive session.

22. Case No. M-09-006Howell vs. Water Valley Bd. of Ald. • Selecting a board attorney is a “personnel matter” which may be discussed in executive session when the board considers the “job performance, character, [and] professional competence” of the attorney.

23. Case No. M-09-009Hood vs. Belzoni Bd. of Ald. • Board may never discuss pay raises for themselves in executive session as elected officials are not “personnel.” • Board must publicly state a meaningful reason with sufficient specificity before entering executive session. • Reason for executive session must be recorded in the minutes.

24. NOTICE AND RECORD OF MEETING

25. OPEN MEETINGS ACTNotice of Meetings • Regular meetings of some public bodies are set in statute. • If not set by statute, the times, places, and procedures of meetings must be spread upon the public body’s minutes. • For recess, adjourned, interim or special meetings, notice must be posted in the building where the public body normally meets within one hour of calling the meeting. • Copy of the notice must be placed in the minutes.

26. Case No. M-09-008Goodman vs. Lena Bd. of Ald. • Public notice must be posted within one hour of calling a meeting other than a regularly scheduled meeting. • Notice must be posted in a prominent place in building where board meets. • Notice must be included in the minutes of that meeting.

27. OPEN MEETINGS ACTMinutes of Meetings • Minutes must be kept for all meetings, whether in open or executive session. • Minutes must be “recorded” within 30 days after meeting. • Minutes must be available for public inspection.

28. Case No. M-12-012Rody v. Pearl River Co. Bd. Of Sup. • “Minutes shall be recorded within a reasonable time not to exceed thirty (30) days after recess or adjournment and shall be open to public inspection during regular business hours.” • The term “recorded” means written or drafted. • Draft minutes must be made available for public inspection.

29. OPEN MEETINGS ACTContent of Minutes Minutes must show: • Members present and absent; • Date, time and place of meeting; • Accurate recording of any final actions; • Record, by individual member, of all votes taken; • Any other information requested by the public body.

30. Case No. M-12-012 Rodyv. Pearl River Co. Bd. Of Sup. • The minutes of a public body may, but are not required to, reflect discussions occurring in open session when no action was taken. • Minutes are not transcripts. The purpose of the minutes is to record what actions were taken at the meeting, not to record everything that was discussed.

31. PUBLIC PARTICIPATION

32. Case No. M-11-008Smith v. Town of Summit • An agenda and materials that will be distributed to members of the public body must be made available to the public at the time of the meeting. Section 25-41-5(4)

33. Case No. M-10-004Cockrell v. Canton Bd. of Ald. • Public body may make and enforce reasonable rules for conduct of persons attending meetings. • Public body may not ban cameras or other recording devices from an open meeting.

34. Case No. M-10-007Townes v. Leflore Co. Sch. Bd. • Public body may make and enforce reasonable rules for conduct of persons attending meetings. • Public body is not required to allow members of the public to speak at meetings.

35. Case No. M-11-003 Hampton vs. Louisville Mun. Sch. Dist. • Open Meetings Act requires public bodies take all reasonable means within their powers and resources to ensure all members of the public who attend are able to “see and hear everything that is going on”. • Act does not require public body to provide electronic amplification during public meetings, nor can public body be required to provide seating for an overflow crowd.

36. OPEN MEETINGS ACTTelephonic Meetings • All members can participate by phone or video conference. • They can be in different locations, so long as one location is open to the public. • Notice of telephonic meetings must be given 5 days in advance, except in emergency, and must include the public location.

37. OPEN MEETINGS ACTTelephonic Meetings • Meeting must be suspended if phone service is interrupted. • Roll call votes are required. • Meeting must be recorded by audio (when using telephone) or video (when using video conference), and recording must be kept 3 years.

38. Contact Us Mississippi Ethics Commission Post Office Box 22746 660 North Street, Suite 100-C Jackson, Mississippi 39225-2746 Phone: 601-359-1285 Fax: 601-359-1292 www.ethics.state.ms.us info@ethics.state.ms.us