Open Meetings, Public Records & Ethics in Government MISSISSIPPI ETHICS COMMISSION Mississippi Conference of School Board Attorneys Holiday Inn Trustmark Park, Pearl May 9, 2017 Open Meetings, Public Records & Ethics in Government

Three Areas of Jurisdiction Ethics in Government Law Open Meetings Act Public Records Act

OPEN MEETINGS ACT

NEW LAWS HB 1116 Amends Section 25-41-13, Notice. Requires boards to post notice of called special meetings on their web site and email or fax notice not less than 1 hour before the meeting to anyone who requests it. Does not apply to counties with population less than 50,000 or municipalities with population less than 25,000. Takes effect July 1, 2017. HB 1119 Amends Section 25-41-5, Telephonic Meetings. Requires the equipment used (speaker phone) be located in the place where the board normally meets and allow members of the board and public to hear deliberations. Votes taken must be clearly audible or visible to members of the board and public. Special 5-day notice no longer required. Telephonic meetings no longer need to be recorded.

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.

OPEN MEETINGS ACT The Basics Public meetings must be open to public. Executive session must follow specific procedure and only for certain 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.

OPEN MEETINGS ACT Definitions “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.

EXECUTIVE SESSION

Executive Session Procedure: 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).

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).

Executive Session Reasons Executive session may be held for these 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), (m) (n) certain PERS board investments and hospital matters

OPEN MEETINGS ACT Notice Times and places of regular meetings should be set in minutes and procedures. For recess, adjourned, interim or special meetings, notice must be posted in building where meeting is held within one hour of calling the meeting and posted on web site and sent to those who request it. Copy of the notice must be placed in the minutes.

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.

OPEN MEETINGS ACT Content 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.

OPEN MEETINGS ACT Telephonic Meetings All members can participate by phone. They can be in different locations, so long as one location is open to the public. Equipment (speaker phone) must be located in place where board normally meets and allow members of board and public to hear deliberations. Votes must be clearly audible or visible to members of the board and public.

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.

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.

PUBLIC RECORDS ACT Some 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.

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

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. Commission can issue subpoenas and conduct in camera review of documents. Commission can order production of records. Commission can mediate disputes. Either party may appeal or enforce Ethics Commission order in local chancery court. Complaints can still bypass the Ethics Commission and go straight to chancery court.

Public Records Opinions R-13-002: Butts vs. 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.

Public Records Opinions R-14-001: Miller vs. Rankin Co. Sch. Dist. 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. Electronic records like teachers’ emails are public records if they concern any work of the school district, unless exempted or privileged. 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.

Public Records Opinions R-14-009: Greenwood Commonwealth vs. 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. R-14-017: Rogers vs. Rankin Co. Sch. Dist. School district may charge attorney fees to review detailed legal bills for privileged or confidential information.

Public Records Opinions R-09-008, Davis vs. Univ. of Southern Miss. Settlement agreement with former student worker was an “education record” under FERPA (Family Educational Rights and Privacy Act, 20 U.S.C. § 1232.) and was exempt from disclosure under the Miss. Public Records Act. R-12-009: Mosher vs. Ocean Springs S.D. Score sheets from cheerleader tryouts are protected from disclosure under Section 37-15-3 and FERPA.

Public Records Opinions R-12-013: Greenwood Commonwealth vs. State Dept. of Education To comply with FERPA, student information must be redacted from records so that individual students cannot be identified. R-08-009: Clarion-Ledger vs. Univ. of Miss. The public employment contracts of public employees, (coaches and athletic director) which form the basis for their compensation with public funds, are not exempted personnel records as described in Section 25-1-100.

ETHICS IN GOVERNMENT LAW

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 COMPLAINT PROCEDURE

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 holds hearings to determine guilt and to impose penalties. Appeals go to Hinds County Circuit Court. Commission can 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

THE STATEMENT OF ECONOMIC INTEREST

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.

Filing Dates Incumbents – May 1 of each year. Candidates – within 15 days after qualifying. Appointees – within 30 days of appointment.

Contents Discloses the sources of an individual’s income, not specific amounts. Covers previous calendar year. Requires listing 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. Can only be filed online at the Commission’s website.

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.

Advisory Opinion 13-024-E A school board member may have an interest in a Sixteenth Section lease only when the lease was authorized before the school board member took office, and the school board will take no action on the lease during the board member’s term or for one year thereafter.

Advisory Opinion 15-074-E A newly elected school board member may not remain employed with a company which contracts with the school district. Therefore, the new board member must terminate his or her contract with the company before taking office, or the company must terminate its contract with the school district before the new board member takes office.

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) “Relative” is the public servant’s spouse, child, parent, sibling (brothers and sisters) or spouse of a relative (in-laws).

Advisory Opinion 14-051-E The financially independent child of a newly elected school board member may remain employed with the school district, but the board member must recuse himself from any matter which would result in a monetary benefit to the child.

Advisory Opinion 10-067-E A food services director for a school district may not hire her husband or supervise her husband pursuant to Section 25-4-105(1). However, the Ethics in Government Law does not prohibit a food services director from hiring her husband’s niece, although it may be prohibited by other statutes.

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 10-006-E A member of a school board may also serve as an officer of a Parent Teacher Organization (PTO) within the same school district, so long as the PTO is not receiving any funds from the district, and the school board member must fully recuse from any board action which would result in a monetary benefit to the PTO.

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 14-008-E A business owned by a school teacher may not serve as a contractor to the school district which employs the teacher. Section 25-4-105(3)(a) prohibits a teacher from having a material financial interest in a business that serves as a contractor to his or her own school district.

Advisory Opinion 16-074-E A school district may not purchase commodities from a business which employs a school board member. Section 25-4-105(3)(a) prohibits a public servant from having a material financial interest in a business which serves as a contractor, subcontractor or vendor to the governmental entity he or she serves.

Not part of Ethics Law but do relate to schools. OTHER LAWS Not part of Ethics Law but do relate to schools.

§ 37-9-17: Step-Aside in Hiring Principal or superintendent cannot recommend employment of relative. Board may designate someone else to recommend relative. Cannot be used for central office staff. Limited to 2 jobs per school. Noninstructional employee must have been previously employed and cannot be paid more than statewide average.

Advisory Opinion 14-039-E A school superintendent’s brother may be employed as a principal or counselor in the same district. If the school board’s designee recommends a superintendent’s relative and the superintendent fully and completely recuses himself or herself from the hiring and supervision process, then the superintendent does not violate Section 25-4-105(1).

Advisory Opinion 10-077-E Superintendent’s spouse may be employed in a position at a particular school under the supervision of a principal if the school board designates someone other than the superintendent to make the employment recommendation. However, superintendent’s spouse may not be employed in the school district central office, pursuant to Section 25-4-105(1) and Section 37-9-17.

§ 37-9-21: School Nepotism Cannot hire licensed employee if related within third degree to majority of board. Board member cannot vote on licensed employee related within third degree. Contract is null and void if it violates this statute.

§ 37-7-333: Bank Contracts If school board member has connection to a bank which bids on depository contract, then don’t open any of the bids. Superintendent sends all sealed bids to state treasurer, who opens bids and selects depository.

Section 210, Miss. Constitution No superintendent, trustee or teacher may have any interest in the sale of anything to any public school in the state.

Contact Us Mississippi Ethics Commission Post Office Box 22746 660 North St., 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