Ethics in Government & Public Records

MISSISSIPPI ETHICS COMMISSION MISSISSIPPI ETHICS COMMISSION Circuit Clerks Association Winter Conference Cabot Lodge Millsaps, Jackson January 14, 2016 Ethicsin Government & Public Records

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 • Public Records Act and • Open Meetings Act

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

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

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

Advisory Opinion 14-040-E A county employee may not continue to work for the county if his or her spouse is elected supervisor. The supervisor will have a prohibited interest in his or her spouse’s employment which will be authorized by the board of supervisors in violation of Section 109 and Section 25-4-105(2).

Advisory Opinion 15-032-E A county may not continue to purchase merchandise at a retail store which employs a candidate for county supervisor and may not continue to purchase insurance from an agency which employs the candidate’s spouse if the candidate is elected.

Advisory Opinion 13-006-E A supervisor may not accept employment with a community service agency where the board of supervisors appropriates money to the agency. Section 109 and Section 25-4-105(2) prohibit a member of a public board from having any direct or indirect interest in a contract funded or otherwise authorized by that board during his or her term or for one year thereafter.

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.

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.

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).

Advisory Opinion 13-036-E A candidate for supervisor may take office where his father-in-law is an employee of the county if the supervisor and the father-in-law are financially independent from each other. Additionally, no violation of Section 25-4-105(1) should occur because the supervisor’s father-in-law is not a “relative” for purposes of the ethics in government laws.

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.

Advisory Opinion 11-078-E A circuit clerk may serve on the board of directors of a nonprofit corporation which is unlikely to have any interaction with the office of circuit clerk. While the nonprofit corporation is a “business with which [the circuit clerk] is associated,” the clerk is unlikely to have any opportunity to use his or her position to obtain or attempt to obtain any pecuniary benefit for the corporation, as proscribed in Section 25-4-105(1).

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.

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.

Advisory Opinion 13-066-E The board of supervisors may not appoint the county administrator to serve as interim circuit clerk where a vacancy has occurred. Section 25-4-105(3)(a) prohibits the board of supervisors from appointing one person to two separate positions with the same county, subject to some narrow exceptions.

Advisory Opinion 13-088-E An individual may serve as special lunacy prosecutor in chancery court and as part-time public defender in circuit court in the same county as they are within separate authorities of county government, and the exception found in Section 25-4-105(4)(h) will prevent a violation of Section 25-4-105(3)(a).

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.

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.

Advisory Opinion 13-075-E Due to the appearance of impropriety that could arise in contravention to Section 25-4-101 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.

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.

Advisory Opinion 13-129-E A former employee of a county may work for a company that contracts with the county but may only work for the company on cases in which the former public servant was not personally or directly involved while employed by the county to comply with Section 25-4-105(3)(e).

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.

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).

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.

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.

THE COMPLAINT PROCEDURE Investigation and Enforcement of Ethics in Government Violations

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.

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

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.

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

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.

PUBLIC RECORDS ACT

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.

Access to Records R-14-037: Fitzgerald v. Forrest Co. Circuit Clerk • Circuit clerk complied fully with the Public Records Act by timely communicating to the requestor that documents in criminal defendant’s court file were available for inspection and copying at the courthouse during regular business hours. • Nothing in the Act requires that the circuit clerk or staff search, review, duplicate, and transmit records in a court file that are already open for inspection and copying.

Access to Records R-15-034: Lawson v. Smith Co. Chancery Clerk • Chancery clerk complied fully with the Public Records Act by making real estate records available for inspection and printing/copying at the clerk’s office via computer terminal or in deed books at the clerk’s office during regular business hours. • Section 25-7-9 requires the chancery clerk to charge fees for furnishing copies documents of record or on file.

Electronic Records • The definition of public records includes all records related to the function of government “regardless of physical form or characteristics.” • The Public Records Act applies equally to paper and electronic records. • “As each public body increases its use of, and dependence on, electronic record keeping, each public body must ensure reasonable access to records electronically maintained.”

Public Records OpinionsElectronic Records R-14-001: Miller v. Rankin Co. Sch. Dist. • Electronic records like teachers’ emails are public records subject to production if they concern any work of the school district, unless exempted or privileged. R-13-023: NE Miss. Daily Journal v. Tupelo • 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.

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.

The Public Records Request • A person who requests public records must request an identifiable record or class of records before a public body can comply with the request. • An "identifiable record" is one that staff of the public body can reasonably locate. • An "identifiable record" is not a request for "information" in general and it is not a list of questions for a public body to answer. See Public Records Opinion Nos. R-10-003 (Hendrix vs. PERS) and R-10-013 (Thomas vs. City of Gulfport).

Public Records OpinionsThe Public Records Request R-14-001: Miller v. Rankin Co. Sch. Dist. (repeated) • Request to search every file at the school district for reference to the word “Bible” fails to describe identifiable public records and can be denied. R-14-002: Nash v. Ruleville • Open ended questions which do not involve a request for records are not proper public records requests. A public body is not required to answer questions, but must respond to any requests which seek identifiable records.

Response to Public Records Request • 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. • The time to respond can be extended to 14 working days only where the public body cannot respond within 7 days and gives good cause in writing to the person requesting the records.

Costs for Responding to a Public Records Request • Public body may require prepayment of reasonably calculated actual costs of searching, reviewing, redacting, duplicating and mailing public records. • Labor costs of searching, reviewing and redacting records must be charged at the rate of the lowest paid person competent to fulfill the request. • Could mean attorneys may only charge for work requiring an attorney, especially when preliminary review can be done by a non-attorney.

Public Records OpinionsCosts for Responding R-14-001: Miller v. Rankin Co. Sch. Dist. (repeated) • District may collect fees to reimburse it for actual cost of searching, reviewing and/or duplicating and, if applicable, mailing copies of public records. Any services included must be at the pay scale of the lowest level employee or contractor competent to respond to the request. 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.

Denying Public Records Request • Denial of public records request must be in writing. • The written denial must identify the specific exemption relied upon by the public body. • The public body must keep all written denials letters for at least three years.

Exempt or Privileged Records The provisions of this chapter shall not be construed to conflict with, amend, repeal or supersede any constitutional or statutory law or decision of a court of this state or the United States which at the time of this chapter is effective or thereafter specifically declares a public record to be confidential or privileged, or provides that a public record shall be exempt from the provisions of this chapter. (Section 25-61-11)

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.

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.

Public Records OpinionsCommon Exemptions: Personnel Records R-13-022: NE Miss. Daily Journal v. Tupelo • Email from mayor to city employee concerning city business is a public record which must be produced unless subject to an exemption. • The email in question contained a reprimand of the employee which was exempt from production as a personnel record.

Ethics in Government & Public Records