MISSISSIPPI ETHICS COMMISSION
Miss. Assn. of County Board Attorneys
Summer CLE
Gulf Coast Convention Center, Biloxi
June 18, 2014
Ethics, Open Meetings & 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 has jurisdiction over
 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
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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
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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.
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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
13-006-E A supervisor may not accept
employment with a community service agency
where the board of supervisors appropriates
money to the agency. Section 109, Miss. Const. of
1890, and its statutory parallel, Section 25-4105(2), Miss. Code of 1972, 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.
Advisory Opinion
13-030-E A county supervisor may not serve
as a contractor or be employed by a contractor
to a community college which receives funding
from the board of supervisors due to the
potential for violations of Section 25-4-105(1)
and Section 25-4-105(3)(d), Miss. Code of
1972, and to fully comply with the public policy
stated in Section 25-4-101.
Advisory Opinion
13-029-E Employer of county supervisor may
be contractor to county utility authority if
lowest and best bidder. Board of supervisors
will not authorize contract and no violation of
Section 109 will occur. Exception in Section 254-105(4)(b) will apply and prevent violation of
Section 25-4-105(3)(a). Supervisor should
recuse from appointments to utility authority
during business relationship to avoid
appearance of impropriety.
Advisory Opinion
13-105-E Pursuant to the public policy set
forth in Section 25-4-101, Miss. Code of 1972,
the board of supervisors should not appoint a
supervisor to the board of commissioners of a
correctional authority where the board of
supervisors has statutory oversight of the
correctional authority.
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.
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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-inlaw are financially independent, no violation of
Section 109, Miss. Const. of 1890, or Section
25-4-105(2), Miss. Code of 1972, should occur.
Additionally, no violation of Section 25-4-105(1)
should occur because the supervisor’s fatherin-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
12-096-E A coroner may allow a transport
company to continue to display a sign on the
transport company’s vehicle advertising the
company’s business when providing transports
for the county. Because the transport company
is not a business with which the coroner is
associated, no violation of Section 25-4-105(1),
Miss. Code of 1972, should occur if the coroner
allows the transport company to continue to
display a sign on its vehicle.
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 vendor with 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 254-105(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 25-4105(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
13-060-E A former chancery clerk may bid on
and purchase land at a tax sale conducted by
the county which he or she previously served.
While Section 25-4-105(3)(b), Miss. Code of
1972, prohibits public servants of the county
from bidding on or purchasing land at the
county tax sale, this section does not prohibit a
retired chancery clerk from bidding on and
purchasing land at that sale.
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 25-4105(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 business after 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), Miss. Code of 1972.
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.
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Section 25-4-105(4) –
Exceptions to Subsection (3)
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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 25-4105(2). The employee would still have to
recuse himself or herself from any action
which might otherwise violate Section 254-105(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.
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THE COMPLAINT
PROCEDURE
Investigation and Enforcement of
Ethics in Government Violations
Complaint Process
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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
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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
ADVISORY OPINIONS
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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
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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.
OPEN MEETINGS ACT
OPEN MEETINGS ACT
Definitions
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“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.
OPEN MEETINGS ACT
Basics
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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.
Case No. M-09-007
Hall vs. Miss. Trans. Commn.
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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.
Case No. M-10-001
Mason vs. Aberdeen Bd. of Ald.
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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).
Case No. M-12-020
McGovern vs. Starkville
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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
Case No. M-10-007
Townes vs. Leflore Co. Sch. Bd.
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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.
Case No. M-10-004
Cockrell vs. Canton Bd. of Ald.
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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.
Case No. M-10-005
Madison vs. Aberdeen Bd. of Ald.
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Law requires public bodies to 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” at an open public
meeting.
Law does not contain any specific
requirements regarding acoustics or
amplification.
OPEN MEETINGS ACT
Notice
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Regular meetings of some public bodies
are set in statute. (depends on form of
municipal government)
For recess, adjourned, interim or special
meetings, notice must be posted in city
hall (building where meeting is held)
within one hour of calling the meeting.
Copy of the notice must be placed in the
minutes.
Case No. M-09-008
Goodman vs. Lena Bd. of Ald.
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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.
OPEN MEETINGS ACT
Minutes
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.
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Case No. M-12-012
Rody vs. Pearl River Co. Bd. Of Sup.
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“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.
OPEN MEETINGS ACT
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.
Case No. M-12-012
Rody vs. Pearl River Co. Bd. Of Sup.
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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.
OPEN MEETINGS ACT
Telephonic Meetings
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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.
OPEN MEETINGS ACT
Telephonic Meetings
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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.
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OPEN MEETINGS ACT
Executive Session
majority vote, public body may enter
closed session to discuss whether to declare
executive session.
A 3/5ths vote of the public body is required
to declare executive session.
Public body must return to open session
and announce the reason for entering
executive session. That reason and the
votes must be recorded in minutes.
Case No. M-10-002
Gates vs. New Augusta Bd. of Ald.
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Board must make “closed determination”
before voting on executive session.
Minutes must record votes by “individual
member.”
When vote is not unanimous, minutes
must name each individual member and
list how each voted.
OPEN MEETINGS ACT
Executive Session
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
Case No. M-09-005
Cooper vs. Adams Co. Bd. of Supv.
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“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.
Case No. M-09-006
Howell vs. Water Valley Bd. of Ald.
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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.
Case No. M-12-012
Rody vs. Pearl River Co. Bd. Of Sup.
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“Litigation” includes “strategy sessions or
negotiations with respect to prospective litigation,
litigation or issuance of an appealable order when
an open meeting would have a detrimental effect on
the litigating position of the public body.”
Public bodies should provide as much specific
information about the reason given as is possible
under the circumstances. The amount of detailed
information which can be provided may change from
one instance to another.
OPEN MEETINGS
Enforcement
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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.
PUBLIC RECORDS ACT
* HERE’S WHAT’S NEW *
PROCEDURAL – SB 2507
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Gives Ethics Commission the same authority in
Public Records cases as commission already has
in Open Meetings cases.
Commission will have authority to issue orders
and impose penalties.
Commission decisions can be appealed to local
chancery court.
Complaints can still bypass the Ethics
Commission and go straight to chancery court.
Changes take effect July 1, 2014.
LIMITING COSTS – HB 928
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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 nonattorney.
Person who violates Public Records Act can be
personally liable for $100 fine and expenses.
Changes take effect July 1, 2014.
Text Msgs. - Op. No. R-13-023
a)
b)
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.
Text Msgs. - Op. No. R-13-023
c)
d)
e)
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.”
PUBLIC RECORDS ACT
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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.
PUBLIC RECORDS ACT
Response and Costs
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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.
PUBLIC RECORDS ACT
Confidential Business Info.
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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.
PUBLIC RECORDS ACT
Some Statutory Exemptions
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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.
Model Public Records Rules
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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
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