Mississippi Ethics Commission - Ensuring Transparency and Accountability in Government
The Mississippi Ethics Commission plays a pivotal role in upholding ethics in government through laws concerning public records, open meetings, and campaign finance. It guides public servants on filing economic interest statements and provides advisory opinions. The commission enforces prohibitions on various activities to prevent conflicts of interest. Section 109 of the Mississippi Constitution of 1890 reinforces the prohibition of public officers being involved in contracts with the state.
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MISSISSIPPI ETHICS COMMISSION Miss. Assn. of Chiefs of Police New Chiefs Training Embassy Suites, Ridgeland January 11, 2023 Ethics in Government, Public Records & Open Meetings
Four Areas of Jurisdiction Ethics in Government Law Public Records Act Open Meetings Act Campaign Finance Law
ETHICS IN GOVERNMENT LAW
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.
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.
Eight Basic Prohibitions Board Member Contracts Use of Office Contracting Purchasing Goods and Services Purchasing Securities Insider Lobbying Post Government Employment Insider Information
Section 109, Miss. Constitution of 1890 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, Miss. Constitution of 1890 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.
Advisory Opinion 13-094-E Alderman s financially independent child or cousin may be employed by the town in the police department, but alderman must recuse from any monetary benefit to the child and should recuse from decisions concerning cousin to comply with the public policy section.
Advisory Opinion 14-042-E The owner of a wrecker service may also serve as alderman and the police department may contact the wrecker service to assist motorists when the cost of the service is not paid for by the city, without violating Section 109 or Section 25-4-105(2) & (3)(a). However, the alderman may not use his position to obtain, or attempt to obtain, any benefit for his business, in compliance with Section 25-4-105(1).
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.
Advisory Opinion 14-006-E The attorney for a municipality s civil service commission may represent defendants in criminal cases pending in the municipal court. However, the attorney must recuse from any civil service cases concerning police officers who may be witnesses in his criminal cases due to the potential for violations of Section 25-4- 105(1) and (5), and Section 25-4-101.
Advisory Opinion 12-049-E A municipal police officer or his company may not sell DUI breathalyzer devices to local bars and restaurants within the city. This situation could lead to a violation of Section 25-4-105(1), Miss. Code of 1972, and creates an appearance of impropriety under Section 25-4-101.
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 13-057-E Section 25-4-105(1) prohibits a city clerk from using his or her official position to obtain or attempt to obtain a pecuniary benefit for his or her relative. However, the clerk s spouse may be legally employed in the police department if the clerk has no supervisory authority over the spouse and takes no discretionary action resulting in a monetary benefit to the spouse.
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 10-066-E not send police cars to an auto repair shop owned by his son-in-law. Section 25-4-105(1) prohibits the chief from using his position to obtain or attempt to obtain any pecuniary benefit for his son-in-law or his son-in-law s business. The chief of police may
Subsection (3)(a) The Contractor Prohibition (3) No public servant shall: (a) Be a contractor, subcontractor or vendor with 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 09-063-E A city police department may provide additional compensation to a police officer for providing a trained K-9 unit, but Section 25-4-105(3)(a) prohibits a city employee from having a separate contract with the same city and receiving separate compensation.
Advisory Opinion 14-054-E An alderman who is also a bail agent may write bail bonds which are not returnable to the municipality, but neither the alderman nor an agency with which the alderman is associated should write bail bonds for any defendant arrested by the municipal police department in order to comply with Section 25-4-101 and Section 25-4-105(1).
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.
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.
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
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.
Incident/Investigative Reports Defines incident report, investigative report and law enforcement agency. Incident report must include identity of person arrested, date, time, location and nature of offense. Incident report must be disclosed. Investigative reports may contain detailed information about crime and victim. Investigative report does not have to be disclosed.
Public Records Opinions R-10-005, Sacharin vs. 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 vs. 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 vs. 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.
Public Records Opinions R-14-003: Stallworth vs. Harrison County Coroner Coroner s autopsy report and photographs are law enforcement investigative records and are exempt. R-10-013, Thomas vs. City of Gulfport 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. 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.
Public Records Opinions R-13-005 - 010: Miss. Crime Crier vs. Sheriffs Departments Incident reports and jail dockets are nonexempt public records which must be produced upon request. Mug shots are not necessarily part of either record and may be provided upon request at the discretion of the law enforcement agency. Records must be provided in electronic format only if they are kept in electronic format. R-13-001: Williams vs. City of Jackson Salary information and time cards of city employees are not exempt personnel records. If the records contain exempt information, it may be redacted before the records are produced. R-13-007: DeLoge vs. DeSoto County Sheriff s Department Evidence in an open criminal investigation, even if public record, qualifies as investigative reports and is exempt from disclosure.
Public Records Opinions R-13-012: Weatherford vs. City of D Iberville Public records request for a court file in a criminal case must be honored unless the file has been properly sealed. The court must strictly follow a specific procedure before sealing a court file, including an open hearing after notice to the parties and media. R-13-020: Stankevich vs. City of Jackson Investigative reports are exempt from public records disclosure. E-911 recordings are not only exempt but may not be released without a court order. R-13-022: NE Miss. Daily Journal vs. City of Tupelo Email from mayor to city employee which contained a reprimand was exempt as a personnel record.
Public Records Opinions R-14-015: McKinney vs. Carroll County Sheriff s Dept. Requestor must ask for identifiable records. Mere questions or requests for information do not require a response. R-14-007: Muller vs. Dept. of Public Safety Question about employment status is not a request for public records. Incident report created by another law enforcement agency and obtained by DPS solely as part of an internal affairs investigation is a personnel record and exempt from production by DPS, although it could be obtained from the reporting agency. R-14-008 & 012: Muller vs. DPS & MDOT Witness statement obtained from MDOT employee in the course of internal affairs investigation by DPS and possessed by both agencies is a personnel record and exempt from production by either agency.
PUBLIC RECORDS ACT Some Statutory Exemptions Personal contact information on judges, cops, prosecutors or victims of crime, 25-61-12 Appraisal records exempt, 31-1-27 Attorney work product exemption, 25-1-102 Environmental self-evaluation reports, 49-2-71 Individual tax records, 27-3-77 Personnel files exempt, 25-1-100 Workers' compensation records, 71-3-66
Public Records Opinions Common 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 Opinions Common 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.
Text Msgs. - Op. No. R-13-023 a) 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. b) 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.
Text Msgs. - Op. No. R-13-023 Purely personal text messages having absolutely no relation to government business are not public records. d) Public record text messages might have to be retained by the public body. e) 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. c)
PUBLIC RECORDS ACT Response 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.
Enforcement 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 can mediate disputes. Either party may appeal de novo or enforce Ethics Commission order in local chancery court. Complaints can still bypass the Ethics Commission and go straight to chancery court.
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
OPEN MEETINGS Enforcement 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.
