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Ethics in Government, Public Records and Open Meetings

MISSISSIPPI ETHICS COMMISSION. 2012 Southern Section A&WMA Annual Conference Beau Rivage, Biloxi September 14, 2012. Ethics in Government, Public Records and Open Meetings. OVERVIEW OF THE MISSISSIPPI ETHICS COMMISSION.

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Ethics in Government, Public Records and Open Meetings

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  1. MISSISSIPPI ETHICS COMMISSION 2012 Southern Section A&WMA Annual Conference Beau Rivage, Biloxi September 14, 2012 Ethics in Government, Public Records and Open Meetings

  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 has limited jurisdiction over the • Public Records Act and • Open Meetings Act

  3. MISSISSIPPI ETHICS COMMISSION • Eight members serve staggered terms. • Members appointed by Governor, Lieutenant Governor, Speaker of the House and Chief Justice. • Commission staff supervised by an executive director who serves at the Commission’s will and pleasure.

  4. 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

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

  6. 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

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

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

  9. Advisory Opinion 10-106-E A business owned by the financially independent son of a state commission member may be awarded contracts by the commission. If the commission member and the son are financially independent, then the commission member will have no interest in the contracts as prohibited in Section 109 and Section 25-4-105(2). However, the commission member must fully recuse himself from awarding contracts and any other action which will result in a pecuniary benefit to the son or his business, in compliance with Section 25-4-105(1).

  10. Section 25-4-105(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 25-4-103(q) “Relative” is the public servant’s • spouse, • child, • parent, • sibling (brothers and sisters) or • spouse of a relative (in-laws).

  13. Advisory Opinion 10-029-E An individual may not remain employed by a state agency after the employee’s spouse becomes the executive head of the agency. A public servant may not use his position to obtain any pecuniary benefit for his or her spouse, as prohibited in Section 25-4-105(1). Due to the potential for a violation and the policy codified in Section 25-4-101, the employee should resign before her spouse becomes the executive head of the agency.

  14. Section 25-4-103(c) ‘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 10-106-E (REPEATED) To comply with Section 25-4-105(1), a state commission member must fully recuse himself from awarding contracts and any other action which will result in a pecuniary benefit to his son or his son’s business, which is a business with which the commission member is associated because it is owned by his relative.

  16. Subsection (3)(a) – The Contractor Prohibition 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. Subsection (3)(a) – The Contractor Prohibition “The term contractor is generally used in the strict sense of one who contracts to perform a service for another and not in the broad sense of one who is a party to a contract.” Moore, ex rel. City of Aberdeen v. Byars, 757 So.2d 243, 248 (¶ 15) (Miss. 2000).

  18. Subsection (3)(a) – “Material Financial Interest” personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Except for: • Ownership of less than 10% in a business with aggregate annual net income to the public servant less than $1,000.00; • Ownership of less than 2% in a business with aggregate annual net income to the public servant less than $5,000.00; • Income as an employee of a relative if neither the public servant or relative is an officer, director or partner and any ownership interest would not be material under subparagraph 1 or 2; or • Income of the spouse of a public servant when the spouse is a contractor, subcontractor or vendor and the public servant exercises no control, direct or indirect, over the contract.

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

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

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

  22. Subsection (3)(b) – The Purchaser Prohibition 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.

  23. 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.

  24. Subsection (3)(e) – Post Government Employment 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.

  25. 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.

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

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

  28. 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).

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

  30. 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.

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

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

  33. 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.

  34. Filing Dates • Incumbent office holders must file on or before May 1 of each year. • Candidates for office in primary, special, or general elections must file within 15 days after qualifying. • Appointees to offices required to file must submit a disclosure form within 30 days of their appointment.

  35. Contents • Discloses the sources of an individual’s income, not specific amounts. • Covers previous calendar year. • Requires listing the name and address of all businesses in which filer or household member held a position or interest or received income. • Must name public bodies from which filer or household members received income. • Must be filed online at the Commission’s website.

  36. Online Filing: Create an Account

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

  38. 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.

  39. 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 only recommend that Hinds County Circuit Court remove an official or suspend or demote an employee

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

  41. 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.

  42. PUBLIC RECORDS ACT

  43. 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.

  44. PROCEDURE Section 25-61-13 sets forth procedure for resolving disputes arising under the Public Records Act. • Any person may request an opinion from the Ethics Commission about whether a public body has violated the Public Records Act by denying a request for records. • A copy of the opinion request will be sent to the public body, which can respond. • The Commission can issue a nonbinding opinion. • If the dispute is not resolved voluntarily, then the person requesting the opinion must file a lawsuit in chancery court to compel production of the public records.

  45. 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. (Can extend to 14 days if good cause given in writing.) • 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.

  46. 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.

  47. PUBLIC RECORDS ACTOther Exemptions • Appraisal records exempt from access, see § 31-1-27. • Attorney work product exemption, see § 25-1-102. • Environmental self-evaluation reports, § 49-2-71. • Individual tax records in possession of public body, see § 27-3-77. • Personnel files exempt from examination, see § 25-1-100. • Workers' compensation, access to records, see § 71-3-66.

  48. Public Records Opinions • R-11-001: Tharp vs. Jackson Public Schools Under the Public Records Act, an individual has no more right to public records pertaining to him or her than any other member of the public would have. While the individual may certainly have a right to obtain the record in an administrative or court proceeding, the Public Records Act gives the same right of access to all members of the public, regardless of their personal connection to the record. • R-10-003: Hendrix vs. PERS A requestor must request an identifiable record or class of records before a public body can comply with the request. Requests for information or questions are not proper requests for identifiable public records. • R-09-007: Garner vs. 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.

  49. 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

  50. OPEN MEETINGS ACT

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